Sri Maulidah Bt Sukanta Ijol and Another v. Torture Claims Appeal Board

HCAL 358/2019

[2023] HKCFI 2121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 358 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 to amend Form 86 to include the 1^st Applicant’s daughter, Hossain Sumaia as the 2^nd Applicant be granted;

2.  Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 42-year-old national of Indonesia who first arrived in Hong Kong in August 2014 with permission to work as a foreign domestic helper, during which she met and formed a relationship with a Bangladeshi man, and after becoming pregnant with their child, she informed her mother of the pregnancy, but her mother became furious, claiming that it would be a sin for a Muslim to have a child born out of wedlock, and that for which her father would kill her for bringing shame to the family.

2.After her employment was terminated on 30 July 2016 due to her pregnancy, A1 did not depart and instead overstayed in Hong Kong, and on 12 August 2016 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 father or other family members for being pregnant with a child out of wedlock thus bringing shame to her Muslim family, for which she was released on recognizance pending the determination of her claim, and upon subsequently given birth to a daughter, the 2^nd Applicant (“A2”) on 27 January 2017, A1 also raised a non-refoulement claim for her on the same basis as her own claim.

3.A1 was born and raised as a Muslim in Dusun Dukuh Asih, Desa Sukawera, Ligung Sub-District, Majalengka District, West Java Province, Indonesia. After leaving school she worked in a garment factory, married her former husband, and raised a family with 2 twin sons.

4.In 2000 she went to Oman and Dubai to work as a domestic helper before returning to Indonesia in 2004, and in 2007 she divorced her husband due to his constant abuses of her and their poor relationship, and moved back to her parents’ home with her twin sons.

5.In August 2014 she left her sons in the care of her parents and came to Hong Kong to work as a foreign domestic helper, during which she met a Bangladeshi man with whom she soon formed a relationship, and after becoming pregnant with A2, she informed her mother on the phone who however became furious with her and warned her that her father would kill her for bringing shame to the family as a Muslim for giving birth to a child out of wedlock, and upon the termination of her last employment, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection for herself, and also for her daughter after her birth, and for both of them she completed a Non-refoulement Claim Form (“NCF”) for joint assessment with legal representation from the Duty Lawyer Service (“DLS”) but did not attend any screening interview before an immigration officer due to medical reasons.             

6.By a Notice of Decision dated 26 March 2018 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”).

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 father or any family members upon their return to Indonesia due to the absence of any threats or ill-treatment from him or any member of her family other than verbal warning from her mother in one phone call, that there was in fact no contact between A1 and her father since her telephone conversation with her mother in 2016 to suggest or indicate any intention of her father or any member of her family to seriously harm or kill her or her daughter upon their return to Indonesia, that in any event it was a private family dispute between A1 and her father or her family 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 reasonable internal relocation alternatives are available in Indonesia with a large population of 258 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 A2 to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for A1’s father or any other family members to locate them.

8.On 3 April 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 attended an oral hearing on 21 December 2018 before the Board during which she gave evidence and answered questions raised of their claim by the Adjudicator for the Board.  On 21 January 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted A1’s evidence that her parents were angry and upset when they learnt of her pregnancy but was not persuaded that her father would harm her given that she has subsequently married her Bangladeshi boyfriend thereby removing any shame which might bring to the family as warned by her mother, nor did it accept that her father who had been supportive of her in her previous divorce with her former husband and has been caring for her twin sons born to her former marriage would seek to harm her or her daughter as not credible, that according to relevant COI that her daughter would be entitled to Indonesian citizenship upon A1 returning with her to Indonesia, while her Bangladeshi husband would also be able to accompany her and their daughter to Indonesia where he can apply for a permanent residency after 3 continuous years of complying with his visa conditions that they can reside there together as a family, or in his absence that there would still be support and assistance from A1’s own family as well as various government departments and organizations available to both A1 and A2 upon their return to Indonesia that there is not any real risk or chance that they will suffer harm from A1’s family or from others in the Indonesian society for reasons of their race, religion, nationality or membership of a particular social group or political opinion that their claim for non-refoulement protection failed on all applicable grounds.    

10.On 11 February 2019 A1 filed a Form 86 with herself named as the only applicant without her daughter for leave to apply for judicial review of the Board’s decision, and in her subsequent written submissions dated 28 October 2021 she put forward the following grounds for her intended challenge:

(1)   That the Adjudicator was unreasonable in making speculative findings with regard to assessment of the credibility of the Applicants’ risk;

(2)   That the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in the duty of joint endeavour in her assessment of non-refoulement claim;

(3)   That the Adjudicator made mistake of fact and/or failed to take a relevant factor that their risk of harm emanates from A1’s political opinion generally.

11.At the hearing of her application, A1 clarified that she had all along intended to include A2 in her application, but being without legal representation she somehow mistakenly omitted to do so in her Form 86.  In the circumstances I accepted her explanation and granted leave for her to amend her Form 86 accordingly to include her daughter as the 2^nd Applicant in the application for leave to apply for judicial review of the Board’s decision on the same basis of those grounds put forward by A1 above, of which I shall consider next.

12.From a careful reading and consideration of her skeleton submissions in relation to those grounds, it appears however that A1 had just copied them from some application of another claimant whose non-refoulement claim is of totally different nature or factual basis with no relevancy to the Applicants’ own case in which there is never any suggestion or indication of any involvement of any political opinion of A1, while it is also clear from the Board’s decision that the credibility of A1’s claimed fear of harm from her father or other family members over her birth of A2 out of wedlock was never disputed by the Adjudicator, but that it was for the detailed analysis and reasons given in the Board’s decision that such risk of harm was not accepted as real or foreseeable upon their return to Indonesia, or that it would be negated by the availability of state protection and internal relocation to both A1 and A2 that the Board rejected their appeal/petition.

13.Furthermore, given the meticulous analysis and detailed enquiries undertaken by the Adjudicator with A1 during the hearing and from the relevant COIs that there is simply no merits or substance in the Applicants’ complaint under Ground (2) when it is clear to me that the Adjudicator did undertake a proper and adequate joint endeavor in the assessment of the Applicants’ claim.

14.In the premises, 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 of their proposed grounds relevant to their claim or reasonably arguable for their intended challenge.     

15.I am of course mindful of the fact that at the time of her appeal before the Board, A2 was a 2-year-old minor without legal representation, where the Court’s approach in considering a claim for non-refoulement protection by such a minor, especially one of tender age as A2, have been considered by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and summarized by the same Court in Re Jasvir Singh [2021] HKCA 53 as follows:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

   (1)   Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

   (2)   Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

   (3)   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.

See: Fabio Arlyn Timogan, at [34] – [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case- by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] – [53], [56] – [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”           

16.In the present case, the claim of A2 as stated in her joint NCF with A1, and which was prepared and completed with legal representation from DLS, was based on the facts and risk submitted in the claim of her mother, A1, and as noted above that the Board accepted the centerpiece of A1’s claim but did not find that she would face any real risk of harm from her father or any member of her family due to the absence of any evidence of any direct threats from any of them, and that in any event given the facts that her father had always been supportive of her by assisting her in her divorce from her former husband and in looking after her twin sons from her former marriage notwithstanding her subsequent relationship with another man and for giving birth to A2 out of wedlock, and that whatever tension or resentment her father may have towards A1 would be put to an end upon her subsequent marriage to her Bangladeshi husband who is also a Muslim and who may in all probabilities accompany her and their daughter to Indonesia as a family, and in finding from relevant COI that A2 would also be entitled to Indonesian citizenship, it is clear from the decision that the Board did properly assess A2’s claim separately from A1, in particularly and specifically the risk arising from her status of being born out of wedlock and outside Indonesia (see [23], [40] - [44] of the Board’s decision).

17.In my view the Board had properly assessed A2’s claim and duly given reasons for rejecting the same, and there is nothing before the Court to indicate that the merits of her claim had not been fully or adequately explored before the Board due to lack of legal representation such that the high standards of fairness were not met. As such I shall treat her lack of legal representation under Order 80 r 2 of the Rules of the High Court as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Jasvir Singh supra.     

18.In the circumstances, 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.

19.In the Applicants’ case, the fact is that it has also been established by the Director in his decision that the risk of harm in their claim if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Bangladesh, 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.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.

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

Dated the 16^th day of August 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