Vera-gustiawati Alias Gustiawati Vera Alias Vera Gustiawati and Another v. Torture Claims Appeal Board

HCAL 293/2019

[2023] HKCFI 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 293 of 2019

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 1st Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave for the Applicants to apply for Judicial Review be granted;

2.  The 2^nd Applicant be represented by the Official Solicitor; and

3.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 38-year-old national of Indonesia who last arrived in Hong Kong on 17 January 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 17 January 2015 or within 14 days of its early termination, but when it was prematurely terminated on 20 April 2013, she did not depart and instead overstayed in Hong Kong, and more than one year later on 7 October 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts and/or by her Muslim family and the Muslim community over her relationship and out-of-wedlock pregnancy with her African Christian boyfriend in Hong Kong, and upon subsequently giving birth to their son, the 2^nd Applicant (“A2”) on 18 November 2015, she also raised a similar claim for A2 on the same bases. They have been released on recognizance pending the determination of their claims.

2.A1 was born and raised as a Muslim in Desa Tukdana, Tukdana, Indramayu, West Java, Indonesia. After leaving school she worked as a domestic helper in Taiwan and Kuwait before returning to Indonesia in 2004 to work in her family’s food business, and subsequently married her husband and raised a family with a daughter in her home district.

3.After her husband passed away in 2010, A1 came to Hong Kong in 2011 to work as a domestic helper to support her daughter, however one day she was informed by her sister in Indonesia that her parents had earlier used her name to borrow a loan from a local money-lender for their use, but had not been able to repay their loan, and for which the money-lender had made threats against A1 and her family, and so apart from sending money every month to support her daughter, she also had to do so to assist her parents to repay their loan.

4.However, when her last employment contract was prematurely terminated on 20 April 2013, and hence was unable to remit any money to her parents, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she formed a relationship with an African Christian man, and in early 2015 when she learnt of her pregnancy of A2, and when she informed her parents in Indonesia of the same, they became furious and disapproved of her relationship with a Christian man and for bringing dishonor to her family in the Muslim community, and threatened to kill her and her child if she dared to return to Indonesia.

5.As a result, A1 subsequently surrendered to the Immigration Department and raised her non-refoulement claim for protection, and after giving birth to A2, she did the same for him, and for which she completed a Non-refoulement Claim Form (“NCF”) jointly for both of them on 6 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 January 2018 the Director of Immigration (“The Director”) rejected the claims of both A1 and A2 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 claim of the Applicants and assessed the level of risk of harm from the money-lender or A1’s family or the Muslim community as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the Applicants had never been actually harmed or ill-treated by any of them, that there is no evidence of any real intention of any of them to seriously harm or kill either of them, that in any event in the absence of any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that the Indonesian government has taken steps to provide assistance and protection for women and children from domestic violence and support from NGOs to help women and children in need or of any evidence that illegitimate children are at risk of physical harm or discrimination, and that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 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 with A2 to other part of the country away from her home district in large cities such as Bali or Surabaya where it would be difficult if not impossible for anyone to locate them.

8.On 22 February 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 8 October 2018 before the Board with their lawyer from DLS during which A1 gave evidence for herself and A2 and answered questions raised of their claim by the Adjudicator for the Board and with submissions made on their behalf by their lawyer. On 29 November 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no evidence that the money-lender had done anything to harm A1’s family in Indonesia to suggest any future risk of harm to either A1 or A2 upon their return to Indonesia, that any fear of them being harmed or killed by A1’s family or subjected to derogatory treatments by the Muslim community is all speculative, that according to COI that while it is true that single women having children born out of wedlock may face stigmatization and discrimination in the society, there are police protection as well as laws which prohibit domestic abuse and violence against women and children and with NGOs to provide support and assistance to them if needed, and that reasonable internal relocation alternatives are available in Indonesia for A1 to move safely with A2 to other part of the country away from her home district without any risk of being located that their claim for non-refoulement protection failed on all applicable grounds.

10.On 31 January 2019 A1 filed a Form 86 naming herself only as the applicant for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation to which she just attached a copy of the decision without putting forth any proper ground for her intended challenge, and at the hearing of her application and upon A1’s confirmation that she had in fact intended to include A2 in the application, I allowed her to do so to amend the Form 86 to include A2 as the 2^nd Applicant accordingly.

11.While at the hearing A1 also failed to put forth any proper ground for their intended challenge, given the serious implication of what is at stake in proceedings of this nature, high standards of fairness require that the Board’s reasons for rejecting their appeal be scrutinized by the Court for any error of law or procedural unfairness, in particularly as A2 is a minor so as to see whether there are matters that may support potential minor-specific non-refoulement basis in his case but which the Board might have failed to consider: see Re Fabio Arlyn [2020] HKCA 971, notwithstanding the fact that unlike in that case, A2 as noted above was in fact legally represented by DLS in his appeal before the Board.

12.Starting with its reasons for rejecting the claim of fear of harm from the money-lender over the outstanding loan of A1’s parents, I accept that the Board was entitled to find on the basis of even A1’s own case of no evidence of any harm being inflicted by the money-lender on her parents in Indonesia to suggest any future risk to either A1 or A2 upon their return to Indonesia, and that in any event it was a private monetary dispute between A1’s parents and their creditor without any state or official involvement that police protection would be available to the Applicants to negate any such risk, and that I do not find any error of law or irrationality or procedural unfairness in the Board’s decision to reject this claim of either of the Applicants.

13.As for the claim of fear of harm arising from A1’s relationship with a Christian man from Africa which led to the birth of A2 as a mixed race illegitimate child, and of the resultant discrimination and hardship that they may face in Indonesia, the Board made the following findings in its decision:

“40. As to the fear of A1 that she and A2 would be harmed, tortured or even killed by her family, or subjected to derogatory treatment. Up to this moment, this is all speculative.

41. According to the COI of Indonesia, it’s true that single mothers in Indonesia face discrimination of one form or another, premarital pregnancy is highly stigmatized for single women, and having children born out of wedlock is viewed by society as immoral, and its attracts great personal and family shame. Furthermore, children of unmarried mothers are labelled as illegitimate and experience social discrimination in various aspects, e.g. education.

42. However, it’s clear from the COI that the law of Indonesia prohibits domestic abuse and violence against women and children. Furthermore, there are also long established non-government organizations which provide for all kinds of support to single mother, divorcees, widows and their children. One such organization is the Female-headed Household Empowerment Program which began in 2001. Its mission is to build a prosperous, gender-equal and dignified society. It helps to improve the livelihood and well-being of women; build critical awareness on the equality of women’s role, responsibilities and social status, their socio-political rights, as well as their control over the decision-making process from family to national level. Amongst other things, it assisted thousands of poor children in getting birth certificates, and women in bringing their cases of domestic violence to court. It also establishes early childhood education centres which provided assistance to thousands of poor students. This program operates in no less than 19 provinces in Indonesia and has 750 groups in 475 villages as of March 2012.

43. It is therefore clear that A1 and A2’s rights are protected by the law and they can also seek assistance from non-government organizations.”

14.It is on the basis of such findings that the Board concluded that the Applicants would not be subjected to any of the proscribed risks, and that in any event internal relocation would be available to negate any such risk that this claim also failed on all the applicable grounds, as it stated at paragraph 53 of its decision:

“It may well be the case that as a single mother, carrying an illegitimate child with her, she may encounter some kind of difficulty in finding a job in another place other than her own home village. However, A1 is a healthy, mature, adult at the age of 34. She had received nine years of education up to Junior High School, and she had ample working experience of over 13 years working as a domestic helper overseas, together with the assistance of non-government organizations, she should have no difficulty surviving even if she moves to stay away from her home village and find a gainful employment to support her living.”

15.While it seems from the above that the Board did, albeit in broad terms, also consider this claim of fear of harm to both Applicants arising from A1 having given birth to A2 out of wedlock, and of which it was entitled to find, on the basis of relevant COI before it, that there are laws in Indonesia to protect single women and illegitimate children from social discrimination, and that supports and assistances from various government departments and NGOs will also be available to them wherever they may relocate within the country, but notwithstanding the fact that it is clear that the Applicants had also raised their fear of harm of discrimination or persecution arising from A1’s relationship with an African Christian man, and that A2 was born out of such relationship as a racially mixed illegitimate child outside a country with a predominantly Muslim population and with strict adherence to the Islamic laws, as it was so identified by the Director (see [6.21] of his decision), and hence it should have been clear to the Board that such fear also formed an integral part of the Applicants’ claims, but of which the Board did not appear to have taken into proper or sufficient account or consideration or at all.

16.As a matter of fact, such fear of the Applicants was clearly recorded in the Director’s decision when the issue of internal relocation was raised with A1 in [6.23] :

“It will not be possible for your Son and you to relocate to other parts of Indonesia. First of all, you do not have money or resources to do so. Your family members, in particular your mother and your siblings, have already shut your Son and you out of your parental house. You do not have any other friends or relatives in Indonesia who can shelter your Son and you on a long or short-term basis, especially given that you have difficulty looking for a job in Indonesia and have to look after a child. Furthermore, given that Islam is one of the most adhered religions in Indonesia with strong religious values, your Son and you will suffer from ubiquitous hostility and discrimination in Indonesia regardless of where you stay in the country…”

17.As such, and yet it does not appear to me that the Board did take into proper or sufficient account or consideration of such fear to the Applicants in its assessment of the availability of internal relocation to them upon their return to Indonesia. In the premises, and for the reasons given, I am of the view that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable on the grounds that the Board (i) failed to consider or consider sufficiently their claim of risk of discrimination and/or persecution by the Muslim community due to A1’s relationship with an African Christian man and to A2 as a mixed race illegitimate child born out of such relationship, and/or (ii) erred in finding that internal relocation would be available to them without taking into account or consideration of such risk sufficiently or at all, thus meeting the threshold for leave to be granted as laid down by Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

18.Accordingly, I grant leave to the Applicants to apply for judicial review of the Board’s decision based on the grounds stated above, and direct that they shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

19.Given that A2 is still a minor at the age of 7, I also urge A1 to consider seeking Legal Aid and/or legal representation so as to comply with Order 80 Rule 2 of the Rules of the High Court for legal representation for A2 in their intended application.

Dated the 4^th day of April 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