Nur Ani Hidayati and Others v. Torture Claims Appeal Board

HCAL 1886/2018

[2021] HKCFI 2724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1886 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 33-year-old national of Indonesia who was born and raised as a Muslim in Village Panen Mulyo, Wajak, Malang, East Java, Indonesia.  After leaving school she worked in various jobs in her home village before coming to Hong Kong in 2009 to work as a foreign domestic helper, and from which she would remit money every month to her parents in Indonesia for their support.

2.In about 2010 A1 was requested by her father in Indonesia to be his guarantor for a loan which he borrowed from the local bank for his use, and to which she agreed, but when her last employment was prematurely terminated on 24 July 2012, she was unable to remit any money to her father to enable him to repay his bank loan, and when she started to receive threating phone calls from her father’s creditor, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and after she was arrested by the police on 24 October 2012 and was then 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 father’s creditor for failing to repay his loan.

3.While being released on recognizance pending the determination of her claim, A1 met a Sri Lankan man in Hong Kong with whom she soon formed a relationship and cohabited together, out of which she gave birth to a son, the 2^nd Applicant (“A2”) on 1 December 2013, and for whom she also raised a non-refoulement claim on the same basis of her claim plus fear that she and A2 would also be harmed or killed by her father who had become angry over her relationship with her boyfriend and for given birth to A2 out of wedlock which were contrary to the teachings of their Islamic faith.

4.However, despite having obtained legal representation from the Duty Lawyer Service (“DLS”) for their claims and repeated requests by the Immigration Department, A1 failed to return a completed Non-Refoulement Claim Form (“NCF”) for herself and A2 as required by Section 37Y of Part VIIC of the Immigration Ordinance, Cap 115, their claims were subsequently treated as withdrawn by the Immigration Department on 28 November 2015.

5.On 8 December 2015 A1 requested in writing to the Immigration Department for the re-opening of their claims, but in the absence of any evidence in writing from her to satisfy an immigration officer that they had not been able to return their completed NCF as required due to circumstances beyond their control, the Director of Immigration (“Director”) by a written notice dated 11 January 2016 refused to re-open their non-refoulement claims.

6.On 12 September 2016 A1 lodged an appeal to the Torture Claims Appeal Board (“Board”) for herself and A2 against the Director’s refusal to allow the re-opening of their claim, but as their notice of appeal was filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, the Board on 6 March 2017 refused to allow the late filing of their notice of appeal upon finding that there was no good reason for their serious delay.

7.On 10 September 2018 A1 filed a Form 86 in these proceedings for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her then supporting affirmation she just stated that she cannot go back to her home country without putting forth any proper ground for her intended challenge.

8.Meanwhile on 24 May 2015 A1 gave birth to a daughter, the 3^rd Applicant (“A3”) out of her said relationship with her Sri Lankan boyfriend, for whom she also raised a similar non-refoulement claim on 8 December 2015 on the same basis as before, and 3 years later on 23 May 2018 she gave birth to another daughter, the 4^th Applicant (“A4”) for whom she also raised a similar non-refoulement claim.

9.At about the same time A1 also made a request for a subsequent claim on the same basis as before for herself and A2, which the Director eventually allowed for her to do so and to be assessed together with those of A3 and A4, and for which she subsequently completed two Non-refoulement Claim Forms (“NCF”) on 6 March 2019 and 28 May 2019 for herself and her children, and jointly attended screening interview before the Immigration Department with legal representation from DLS.     

10.By a Notice of Decision dated 24 June 2019 the Director of Immigration (“Director”) assessed the claims of A1 and her children jointly together and rejected them 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”).

11.In his decision the Director took into account of all the relevant circumstances of the claims of A1 and her children and assessed the level of risk of harm from her father or his creditor upon their return to Indonesia as low due to the absence of any past ill-treatment from them, that there was no reliable evidence of any real threats of harm from either of them in what were essentially some private family or monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that support and help for unwed mothers and illegitimate children are available from both government and NGOs in Indonesia to help A1 and her children as well as reasonable internal relocation alternatives within the country with a large population of 263 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with her children 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 father or his creditor to locate her or her children.

12.On 8 July 2019 the Applicants lodged an appeal to the Board against the Director’s decision, but for which they failed to attend the scheduled oral hearing before the Board, and when A1’s subsequent explanation due to a medical reason for their failure to attend the hearing was rejected as just a bare and uncorroborated assertion by the Board which in the absence of any request for another oral hearing proceeded to deal with their appeal on paper, and on 23 September 2019 it dismissed their appeal and confirmed the Director’s decision.

13.In its decision the Board from the materials and information available before it that there is no reliable evidence that the Applicants will be harmed due to a debt allegedly incurred by A1’s father to a bank back in 2010 with no other information on the debt or whether it has since been repaid that it did not consider that there are any substantial grounds for believing that there is still be any real risk of the Applicants being harmed by some unknown creditor, while it is highly likely or open to A1 to marry her Sri Lankan boyfriend so as to relocate with their children as a family to Sri Lanka where there is no risk of any harm or for A1 to sponsor her boyfriend to relocate to Indonesia where they can support a family for their children, and that in any event the latest relevant COI show that families of single mothers and illegitimate children are common in Indonesia with necessary help and support from various government agencies and NGOs available to all the Applicants upon their return to Indonesia that their claim for non-refoulement protection in Hong Kong failed on all the applicable grounds.     

14.The Applicants did not file another Form 86 for judicial review of this decision of the Board, and instead on 23 December 2019 A1 applied for leave to include her children as applicants in her original Form 86 filed earlier on 10 September 2018 to challenge the Board’s decision, and given the fact that her originally intended challenge of the earlier decision of the Board in refusing to allow the late filing of her notice of appeal against the Director’s first decision to refuse to re-open her claim has since been overtaken by the subsequent events as noted above, and given her clear intention to challenge the latest decision of the Board, I allowed her to include her children in her Form 86 and to proceed with their application for leave to apply for judicial review of the second decision of the Board instead of the earlier decision as originally stated in the Form 86. 

15.As A1 did not request any oral hearing for her application in her original Form 86, the Court on 15 December 2020 wrote to the Applicants to ask them whether they would require any oral hearing for their application, and also for them to file any further submissions within 14 days. Up to now the Applicants have not responded or filed any further submissions or representations for their application, and hence I shall deal with the same on paper. 

16.As such, and in the absence of any proper ground being put forth by the Applicants for their intended application or 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. 

17.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.

18.In the Applicants’ case, the Board rejected their claim on its findings on the materials and information available before it for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 46 of its decision with the benefit of the latest COI  confirming state/police protection as well as support and assistances from the Indonesian government agencies and NGOs being available to the Applicants upon their return to Indonesia to negate any threats or harm from A1’s father or his creditor, 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.  

19.Furthermore, the fact is that it has also been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

20.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I also 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 assessment of the Applicants’ claim.

21.I am of course mindful of the fact that 3 of the Applicants are minors of tender age but 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 their claims 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 been considered by the Court of Appeal in Fabio Arlyn Timogan [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 their 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.

22.In the present case, as noted above, the claims of A2, A3 and A4 were all premised fundamentally on their mother’s claim of risk of harm from her father or his creditor who have either no knowledge at all or of very limited knowledge or information about any of the Applicants, and were found by the Board to be of no substantial ground of any real chance or risk that they will suffer any harm from either A1’s father or his creditor under any of the applicable grounds, while it is clear the Board had also taken proper consideration of the relevant COI to find that their mother could sponsor their father for a spousal visa to accompany them to relocate to Indonesia to set up a proper family for their children, and that in any event families of single mothers and illegitimate children are common in Indonesia with various agencies to provide support and assistances for all the Applicants that I do not find any other underlying matters which may be specific to their circumstances that had not been properly or adequately considered by the Board. In the premises I shall treat the absence of legal representation for A2, A3 and A4 in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.     

23.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