Nani Nurnani and Another v. Torture Claims Appeal Board

HCAL 1443/2018

[2021] HKCFI 2732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1443 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 42-year-old national of Indonesia who first came to Hong Kong in 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination subject to renewal and extension of her employment, but when her last employment was pre-maturely terminated on 15 January 2013, she did not depart and instead overstayed in Hong Kong until her arrest by the police on 10 September 2013.

2.After A1 was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for failing to remit money to him in Indonesia for his use, and was subsequently released on recognizance pending the determination of her claim, during which she formed a relationship with another Indonesian man in Hong Kong, out of which she on 30 June 2015 gave birth to their son, the 2^nd Applicant (“A2”) for whom she also raised a non-refoulement claim on the same basis of her own claim and on further bases that if her husband discovered her extra-marital affair that he would harm or kill both of them if refouled to Indonesia, and that A2 being an illegitimate child may face discrimination in the Indonesia community.

3.A1 was born and raised by her aunt after the passing of her parents in Village Indramayu, Sub-District Kandang Haur, Indramayu Regency, West Java, Indonesia. After leaving school she married her husband in 2003 and moved to live with him in Village Eretan Kulon in the same sub-district where they raised a family with 2 children.

4.Soon after marriage she found her husband, who worked as a sailor, was an alcoholic and when he was drunk he would be abusive towards her by slapping and punching her at will, and by 2007 she found it intolerable to continue to live with him that she left him to return to her aunt’s home, and later came to work in Hong Kong as a foreign domestic helper.

5.While working in Hong Kong and when she wanted to keep in contact with her children, her husband demanded that she could only do so by remitting money to him for his use, which she did on a monthly basis so as to be able to talk to her children until 2012 when she lost contact with her husband after he changed his phone number, but she later learnt from her friends that he had married another woman in a religious marriage.

6.In January 2013 her last employment was prematurely terminated but she did not depart for Indonesia for fear of being harmed by her husband, and so she overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, and after given birth to A2, she also raised a non-refoulement claim for him, and for which she completed a Non-refoulement Claim Form (“NCF”) on 9 February 2017 jointly for both herself and A2, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 10 March 2017 the Director of Immigration (“Director”) rejected the claim of the Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s husband upon her return to Indonesia with A2 as low due to the absence of any past ill-treatment from her husband, that A1 has had no further contact with her husband all these years since 2012 and that he has since remarried with no further interest in her after all these years or any knowledge of A2 that there is simply no basis of any fear of harm from him at all, that in any event it was a private domestic dispute between them without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that support and assistances for single mothers and illegitimate children are available from both government organizations and NGOs as well as reasonable internal relocation alternatives within Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for A1as an able-bodied adult with working experience to move with A2 to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate them.

9.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 24 April 2018 before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board. On 27 June 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found no reliable evidence of any threats from A1’s husband whom A1 has lost contact for years and who has shown no interest in her all these years or any knowledge of her affair or of A2 that it is simply just her own speculation of any threats from him towards her or A2 or of any discrimination against A2 by the community of Indonesia, and that in any event that the latest COI show that help and support from Indonesian authorities and NGOs will be available to the Applicants upon their return to Indonesia as well as reasonable internal relocation for A1 to safely move with A2 to other area away from her home district without any risk of being located by her husband that the Applicants’ claim for non-refoulement protection failed on all applicable grounds.      

11.On 23 July 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she just stated that she rejects the decision as it disregarded their dangerous situation without putting forth any proper ground for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.In the Applicants’ case, the Board rejected their claim essentially on its finding of no reliable evidence of any threats from A1’s husband other than her own speculation, and that with the availability of state protection and support as well as reasonable internal relocation for them for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 48 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.  

14.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.I am of course mindful of the fact that A2 is a minor of 6 years old and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which has recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Even Ruth Esq, Adjudicator of the Torture claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and held that claims of minor children even if based on the same set of primary facts are separate from the claims of tehri parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

16.In the present case, as noted above the claim of A2 was premised fundamentally on his mother’s claim of risk of harm from a single individual who has no knowledge of A2 at all and was found by both the Director and the Board to be just groundless speculation and if necessary can be avoided or negated by reasonable internal relocation within Indonesia, while any possible risk of discrimination due to A2’s own personal circumstances as an illegitimate child and raised by a single mother had also been properly and adequately considered by the Board as noted above and also found to be negated by the availability of support and assistances from both state organizations and NGOs on the basis of the latest COI available before the Board.  

17.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and determination of the Applicants’ claim, nor do I see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to A2 that had not been advanced to the Board or properly considered by it, and I shall therefore 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.     

18.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 10^th day of September 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