Rahmawati Diah and Another v. Torture Claims Appeal Board Non-refoulement Claims Petition Office

HCAL 1533/2018

[2021] HKCFI 757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1533 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicants in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review by both applicants be refused.

Observations for the applicants:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing both applicants’ claim of non-refoulement protection.

2.The 1^st applicant (“A1”) and the 2^nd applicant (“A2”) are mother and son.  A1, born in 1983, is a national of Indonesia.  She arrived in Hong Kong on 19 August 2012 to take up employment as a domestic helper.  Her contract was prematurely terminated and she overstayed since 16 November 2014.  On 5 March 2015, she surrendered herself to the Immigration Department.  On 24 June 2015, A2 was born.  On 9 May 2016, she lodged a non-refoulement claim of herself and on behalf of her son.

3.The facts of the case and the basis for the applicants’ non-refoulement claim are summarized at para [11-23] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, A1 and A2 would be harmed or even killed by her husband, Wasito; and A2 would be harmed by Wasitor’s creditor in Indonesia. She claimed that in 2011 and 2012, her husband telephoned her that she had to send him more money to repay the debt owed to his creditors.  When she refused to send more money, Wasito threatened that he would find and kill her.  Wasito called her again in February 2012 demanding money and threatened her again and told her she would not see her son again (she also has a son born with Wasito in Indonesia).  From March 2012 until she changed her telephone number, she received threatening calls from Wasito’s creditor that if she did not repay her husband’s creditor’s debt, she would be harmed and forced to work as a prostitute.  At the end of 2014, her employment contract was terminated and she also changed her telephone number.  Since then she had not received further calls from Wasito or from his creditors.  In September 2014, she married to her current partner, Muhammad, in Hong Kong in a religious ceremony in a mosque and their son (A2) was born in June 2015.  She says that if her husband in Indonesia knows about her relationship with Muhammad and about A2, he would harm her and A2.  She had discussed divorce with Wasito but he threatened that she would not see their son in Indonesia and he would kill her if she mentioned divorce again.  She claims she has heard that, with an illegitimate son, she would be abandoned from the community.

The Director’s decision

4.By a notice of decision dated 15 December 2016, the Director rejected the applicants’ non-refoulement claim on all applicable grounds.  The Director accepted that both applicants are nationals of Indonesia [43].  Having taken into account all relevant circumstances, the Director assessed that the risk of harm to both applicants from Wasito and/or from the creditor is not substantial.  Further, state protection and internal relocation are available to the applicants, which further lower or negate the perceived risk.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicants lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.A1 attended a hearing and gave evidence before the Board on 17 January 2018.  She told the Board that Muhammad was also applying for non-refoulement protection, and if her application is unsuccessful and has to return to Indonesia, Muhammad had agreed he would follow her to Indonesia.  She asked to be permitted to put her son through school in Hong Kong because school in Indonesia is expensive and she did not know whether she can afford it there.  She said she wants to stay in Hong Kong because she wants her son to have free education and advanced study so that he can get a better job and then have a better life than she has.

6.By a decision dated 27 July 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicants’ claim at paragraphs [67-96] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  The Board accepted A1 is a citizen of Indonesia and A2 is also a citizen of Indonesia through birth to A1 [68].

(2)  It found that part of A1’s evidence (in respect of Wasito’s request for money to repay his creditor, their argument over the question of divorce, and her marriage with Muhammad in a religious ceremony and their son was born) was accepted.  However, the important aspect in support of the claim was not credible including her evidence concerning her claimed harassment and threats from her husband’s creditors being found to be inconsistent, confused and evasive [69].

(3)  It considered that if Wasito knows about her marriage to Muhammad, and their son (A2), Wasito may well be insulted, embarrassed and even angry.  However, it did not accept that this will give rise to a real risk that Wasito will harm or kill A1, or A2, or both of them [75].

(4)  A1’s evidence is inconsistent with her claimed fear of serious harm or death at the hands of Wasito.  Her evidence that Muhammad would follow her to Indonesia if her non-refoulement claim is unsuccessful adds further support to a conclusion that neither A1, nor Muhammad, holds a fear that they face a real risk of harm to their wellbeing at the hands of Wasito, nor anyone else if they are required to return to Indonesia [80].

(5)  The Board did not accept that Wasito, or his creditors have an intention to harm A1 or A2 and formed the view that A1 does not hold a genuine fear that there is a real risk that Wasito will cause her or A2 harm [81].

(6)  It also refused to accept A1’s claim that she had been beaten by Wasito [83].

(7)  In any event, reasonable state protection is available to A1 [90].

(8)  In relation to her claim that it would be difficult to resettle in Indonesia with an illegitimate son, the Board firstly did not accept A2 will be perceived to be “illegitimate” since A1 is married to A2’s father, Muhammad, and Muhammad will accompany her and remain with her in Indonesia.  Secondly, it did not find that “a child in the circumstances of A2 is targeted for harm, or faces a real risk of harm” in Indonesia.  Nor did it find that A2 would face a real risk of abandonment or ostracization from the community throughout Indonesia.  The Board did not accept that Muhammad’s lack of the Indonesian language will present as an ongoing or significant problem or that he will be obstructed from finding employment which will enable A1, A2, and Muhammad to settle and live in Indonesia [91].

8.Accordingly, the Board dismissed both applicants’ appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicants filed a Form 86 on 2 August 2018 for leave to apply for judicial review of the decision of the Board.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.The Form 86 did not set out any proper grounds for the relief sought.  In the affirmation of A1, she only stated that “they disrecard my dangerous situation.”  (sic)

Discussion

12.The relevantprinciples regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.When an applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, it is unnecessary to delve into the decision of the Director.  This decision will focus on discussing the Board’s decision.

14.I will first deal with A1’s application before considering the position of A2 who is a minor.

The 1^st applicant

15.The Board evaluated A1’s claim and evidence carefully.  It found parts of her evidence to be credible while other important aspects not credible.  It accepted that A1’s husband owed debt and asked A1 to give him money to repay and that they had dispute over her refusal to remit money.  It also did not challenge that Wasito may well be insulted, embarrassed and even angry if he knows about A1’s marriage to Muhammad, and that they have a son born in Hong Kong.  However, it did not accept that Wasito had demonstrated a real intention to harm A1 or A2, or that there is a real risk that Wasito will harm or kill A1 or A2.  It formed the view that A1 does not hold a genuine fear that there is a real risk that Wasito will cause her or A2 harm [81].  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

16.Taking into account all the relevant circumstances, it rejected A1’s claim based on its findings of fact, assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.

17.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

18.A1 stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.  The bare assertion that the Board or the Director disregarded her dangerous situation cannot constitute a valid ground of review.  In the absence of any error of law or procedural unfairness being shown by A1, I do not find any reasonably arguable basis to challenge the decision of the Board in respect of her application.

19.For the reasons given, there is no prospect of success in A1’s intended application for judicial review.  I refuse to give her leave for judicial review.

The 2^nd applicant

20.It is necessary for the court to separately consider A2’s position as he is a minor (born in June 2015) and has not been legally represented in these proceedings as required under Order 80, rule 2 of the RHC.

21.The proper approach to children’s non‑refoulement claims has recently been considered by the Court of Appeal (Hon Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971.  I will not repeat everything that has been said in the case.  Suffice it to note firstly that non‑refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  Ill‑treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

22.Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.

23.In the present case, I am satisfied that the Board had sufficiently considered the circumstances of A2 separately.

24.The fears of A2, as put forward by A1, are the risk of harm by Wasito and risk of abandonment or ostracization from the Indonesian community.  The Board accepted that Wasito might be embarrassed, insulted, angered, or upset when he knows A1 gave birth to A2.  However, it did not find that Wasito would cause A1 or A2 harm such that they are in need of non-refoulement to Indonesia. It was a case-specific finding and I agree that it was a reasonable finding.

25.The Board further noted that A2 is also a citizen of Indonesia through birth to A1.  It specifically rejected the claim that A2 will be perceived as “illegitimate” since A1 is married to A2’s father, Muhammad who will accompany and remain with them in Indonesia.  Moreover, having regard to the country information, the Board further emphasized it did not find that “a child in the circumstances of A2” would be targeted for harm, or face a real risk of harm in Indonesia.  Nor did it find that he would face a real risk of abandonment or ostracization from the community [91].  In my view, the Board has addressed the issues of A2 separately with regard to his personal circumstances.  The Board’s finding is not unreasonable on the evidence.

26.The Form 86 and supporting affirmation of A1 contained nothing to demonstrate why the Board’s decision was unfair or unreasonable in the public law sense in relation to A2.  There is no reasonably arguable basis to challenge the decision of the Board which has achieved high standards of fairness in dealing with the claim of A2.

27.In the premises, I also find that A2’s intended judicial review has no prospect of success.  Therefore, notwithstanding that he has not been legally represented before the Board and in the judicial review application, the court will treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.

28.Accordingly, application for leave to apply for judicial review by A2 is also refused.

Disposition

29.The applications for leave for judicial review by both applicants are dismissed.

Dated 30 March 2021

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1