Sri-rahayu and Others v. Torture Claims Appeal Board

HCAL 2102/2018

[2023] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2102 of 2018

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 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 Applicant:

1.The 1^st Applicant (“A1”) is a 47-year-old national of Indonesia who first arrived in Hong Kong in 2005 to work as a foreign domestic helper, and subsequently in October 2011 married a Bangladeshi asylum seeker, and in September 2012 she returned to Indonesia to give birth to her elder daughter, the 2^nd Applicant (“A2”) on 4 March 2013. On 29 November 2014 they travelled to Hong Kong as visitors with permission to remain up to 8 December 2014 during which they lived with A1’s husband as a family, and subsequently did not depart and instead overstayed, and on 9 December 2014 A1 and A2 surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if they returned to Indonesia they would be harmed or killed by A1’s uncle and aunt over some personal dispute between them, and after A1 gave birth to her second daughter, the 3^rd Applicant (“A3”) on 12 August 2016, she also raised a non-refoulement claim for A3 on the same basis. They have all been released on recognizance pending the determination of their claim.

2.A1 was born and raised as a Muslim in Pondok Karanganom, Klaten Jawa Tengah, Indonesia. After leaving school she worked as a domestic helper in Indonesia, Singapore, and Taiwan before coming to Hong Kong in 2005 to work as foreign domestic helper, during which she met her Bangladeshi husband who was then making a non-refoulement claim in Hong Kong.

3.After registering her marriage with her husband in 2011, and when she later became pregnant, A1 returned to Indonesia to stay with her parents in her home village for the birth of A2 who was born in March 2013.

4.One day in February 2014 her uncle and aunt came to visit her family, and when they learned that her husband was a Bangladeshi asylum seeker seeking to stay in Hong Kong instead of joining A1 as married couple in Indonesia, they became suspicious that they were in fact not married but only in cohabitation and that their daughter was therefore illegitimate which was against the Muslim way of life that they had no place to be in Indonesia, and threatened that they should leave or else they would be killed.

5.As the threats from her uncle and aunt persisted, A1 became fearful for the safety of A2, and so on 29 November 2014 they departed Indonesia for Hong Kong to reside with her husband, and upon surrendering to the Immigration Department they then raised their joint non-refoulement claim for protection, and after giving birth to A3 in August 2016, she also raised the same claim for her, and for which A1 completed a Non-refoulement Claim Form (“NCF”) jointly for the 3 of them on 9 October 2017 and attended screening interview jointly before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 30 October 2017 the Director of Immigration (“The Director”) rejected the Applicants’ claims jointly 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that they would be in danger of being harmed or killed by A1’s uncle and aunt upon their return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill them, that in any even it was a private family 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 A2 and A3 would be treated as Indonesian citizens entitled to all rights and benefits including assistance from both government and NGOs if necessary as well as reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with her daughters to other part of the country away from her home district in large cities such as Surabaya or Jakarta where it would be difficult if not impossible for anyone to locate them.

8.On 9 November 2017 the Applicants jointly lodged their appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 30 April 2018 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board for herself and her daughters. On 17 August 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted A1’s evidence of her dispute with her uncle and aunt due to their suspicion over her relationship with her husband but found that the dispute could be easily resolved by the production of their marriage certificate to them, that even on her own admission at her appeal hearing that her uncle had never made any death threats against her or her daughters and that she did not believe that he would actually carry out such threats, that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to her and her daughters upon their return to Indonesia, and that relevant COI also show that both A2 and A3 are Indonesian citizens entitled to all rights and benefits available to them and with support and assistance from A1’s own family as well as government and NGOs if necessary without any risk of any form from anyone that their claims for non-refoulement protection failed on all applicable grounds.

10.On 3 October 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 or in A1’s supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for their intended challenge, nor did they attend the hearing of their application without any explanation.

11.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.

12.In the Applicants’ case, 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 their claim if still exists actually arose from a private family dispute without any official involvement that state/police protection would be available to negate any such risk, and that it is also not unreasonable or unsafe for them to relocate to other part of Indonesia if necessary, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.I am of course mindful of the fact that both A2 and A3 are minors at ages 9 and 6 and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, nor were they so represented in their appeals with their mother before the Board, and hence it is necessary for the Court to consider and examine whether their claims had been separately considered and determined by the Board in a manner sufficient to meet the high standards of fairness necessary in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their appeals before the Board, when the proper approach of which was considered and examined by the Court of Appeal in Re Fabio Arlyn [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, in which it was 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.

14.In the present case, as noted above the claims of A2 and A3 were premised fundamentally on their mother’s claim of risk of harm from a single or two individuals over their private family dispute which in the Board’s view was actually some misunderstanding that can be easily rectified or resolved by documentary evidence of A1’s marriage certificate that it was not accepted that any of the Applicants would face any real risk of harm if refouled to Indonesia, and as both the Director and the Board had also correctly found that state or police protection would be available to them if necessary to negate any such risk upon their return to A1’s home district where her parents and siblings would also be available to offer help and support, while relevant COI also show that A2 and A3 would be treated as Indonesian citizens and hence entitled to all the same rights and benefits available as well as support and assistance of the various government and NGOs if necessary that I am unable to find any other material which may be specific to the personal circumstances of either A2 or A3 as a minor that might not have been properly considered by the Board or could have been otherwise advanced to the Board had they been legally represented in their appeals.

15.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 assessment of the Applicants’ claims, nor do I find any material that may give rise to any concern that might have been non-refoulement grounds related specifically to either A2 or A3 that had not been advanced to the Board or considered by it due to lack of legal representation for them before the Board.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review including those of either A2 or A3 as minor children, for whom I shall treat the absence of legal representation 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 application, and accordingly I refuse the leave application of all 3 Applicants.

Dated the 31^st day of March 2023

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