Agus Susanti and Another v. Torture Claims Appeal Board

HCAL 1632/2019

[2023] HKCFI 2523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1632 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 and 2nd Applicants 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 2nd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

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

4.   The Applicants do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 42-year-old national of Indonesia who last arrived in Hong Kong on 4 February 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 10 May 2012 or within 14 days of early termination of the contract, but when it was prematurely terminated on 6 February 2012, she did not depart Hong Kong, and after giving birth to her son, the 2^nd Applicant (“A2”) on 25 April 2012 out of her relationship with a Pakistani man in Hong Kong, she raised a torture claim later taken as a non-refoulement claim for herself and her son on the basis that if they returned to Indonesia they would be harmed or killed by her creditors over some unpaid debts and/or by her Muslim family for giving birth to an illegitimate child out of wedlock with a Pakistani man in Hong Kong and thus brought shame to the family who were members of the Islamic organization Muhammadiyah that promotes and adheres to strict Islamic laws.  They were subsequently released on recognizance pending the determination of their claim.

2.A1 was born into a Muslim family and raised in Banyuwangi, East Java, Indonesia where her father and elder brother were members of an Islamic organization known as Muhammadiyah that promotes and adheres to strict Islamic rules.  After leaving school A1 in 2008 came to Hong Kong to work as a foreign domestic helper to help supplement her family’s finance, during which she allowed her good friend Siti who was also working in Hong Kong to use her passport to obtain loans from 2 banks in the Applicant’s name which Siti promised to repay by monthly instalments.

3.However, sometimes in 2009 A1 started to receive threatening messages from the banks over Siti’s default with her loans repayments, and when A1 tried to contact Siti over the matter, she was informed by Siti’s former employer that Siti had already completed her employment and left Hong Kong.

4.Soon A1 was told by her family in Indonesia that the banks had sent debts-collectors to look for her for repayment of the loans, and had threatened and harassed her family that her father and elder brother were furious with her for bringing shame to the family, while those debt-collectors had also made phone calls to A1 threatening to kill her if the loans were not repaid.

5.While in Hong Kong A1 met and formed a relationship with a Pakistan man in Hong Kong, and in 2011 she became pregnant with their son A2, and as a result her last employment was prematurely terminated on 6 February 2012, and as she was afraid to return to Indonesia, she therefore overstayed in Hong Kong and raised her non-refoulement claim for protection, and after giving birth to A2 on 25 April 2012, she informed her family but her father and elder brother became furious that she had brought shame to the family for given birth to an illegitimate child out of wedlock with a Pakistan man in Hong Kong that they threatened to kill them should they return to Indonesia, A1 therefore also raised a similar claim for A2 on the same basis, and for which she completed a Supplementary Claim Form (“SCF”) on 21 November 2017 jointly for the 2 of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

6.By a Notice of Decision dated 29 December 2017 the Director of Immigration (“Director”) rejected the Applicants’ claims 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’ claims and found no substantial grounds for believing that that they would be in danger of being harmed or killed by A1’s creditors or family 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 A1’s creditors or family to seriously harm or kill them, that in any event these were private monetary or family disputes 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 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 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 anyone to locate them.

8.On 8 January 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 7 January 2019 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 17 May 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies, discrepancies and lack of supporting documentation in A1’s evidence as to the alleged loans borrowed by her friend Siti with her passport that it doubted her claim of fear of harm from the creditors that caused her to overstay in Hong Kong, and that in any event her disputes with them or her family were private and personal matters without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia, while relevant COI show that there are various governmental departments and NGOs to provide assistances and supports to them as well as reasonable internal relocation 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 claims for non-refoulement protection failed on all applicable grounds.    

10.On 14 June 2019 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 in which she just stated that she rejected the decision as it disregarded their dangerous situation but without providing any details or particulars or elaboration as to how it did so or put forward any proper ground for their intended challenge, while at the hearing of their application A1 just asserted that A2 is an autistic child receiving special therapy and education in Hong Kong but which would not be available to him or are too expensive for them in Indonesia upon their refoulement.  

11.Nevertheless, given the serious implication of what is at stake in proceedings of this nature, high standards of fairness require that the Board’s decisions for rejecting their appeal be scrutinized by the Court for any error of law or procedural unfairness, in particularly when A2 is a minor at the age of 11 without legal representation that it would be necessary to see whether there are matters which may support potential minor-specific non-refoulement basis in his case but which the Board might have failed to consider, as held to be necessary 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 are 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 of a parent that the children’s claims could be dismissed without further consideration of their personal situation;

(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.

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 standards 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 doing so, the court should also consider on a case-by-case basis whether there are matters that may support potential minor-specific non-refoulement bases which 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 of 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 standards 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.”   

12.In the present case, the Board identified the basis of the Applicants’ claims as follows:

“14. Ps would be harmed, killed by P1’s creditors (‘the creditors’), if she should be returned to Indonesia. P1’s friend, Siti Jawatiyah (‘Siti’), had used a copy of P1’s passport to borrow from the creditors in P1’s name. Siti defaulted on the repayment. P1’s family considered that P1 had brought shame on the family, as the creditors were harassing them.

15. P1 would be harmed or killed by P1’s family, of a strict Moslem group: ‘Muhammadiyah’, as P2 is P1’s son with a Pakistani, Nawaz Rab (‘R’), to whom P1 is not legally married.

16. Ps are under threat from P1’s father, Sudarnoto (‘S’), and brother Andri Sujiarto (‘AS’), as P2 is illegitimate.

17. P2 has been diagnosed with autism.  Treatment is expensive in Indonesia, as there are not enough professional therapists to deal with the number of people diagnosed with autism.”

13.The Board then proceeded to find various inconsistencies and discrepancies in A1’s evidence over the alleged loans and threats from her creditors to her and her family due to lack of details such as names of the banks or the amount borrowed or outstanding and without proper documentation that it did not find her evidence credible, and that according to relevant COI that state or police protection as well as support and assistances from various government departments and NGOs will be available to both Applicants upon their return to Indonesia as well as reasonable internal relocation as it would not be unduly harsh for A1 to relocate with A2 to other areas of Indonesia without any risk of being located by her creditors in the absence of any connection to the State that the Applicants had failed to establish such risk under any of the applicable grounds.          

14.However, as regard the other claimed risk of harm from the Applicant’s family over her given birth to an illegitimate child out of wedlock with a Pakistan man in Hong Kong and thus bringing shame to her Muslim family and contrary to Islamic laws, it seems from the decision that the Board did not disbelieve this claim of the Applicants but appears to have just brushed it aside by suggesting that a registered marriage between A1 and the Pakistan man would remove such risk without having first made any or further enquiries as to whether the Pakistan man is willing or able to do so or to accompany the Applicants to Indonesia or his immigration status in Hong Kong, or to assess whether A1’s father and brother as members of the Muhammadiyah organization would indeed accept and forgive A1 in such situation.

15.Similarly, in assessing that internal relocation within Indonesia would be a viable option to the Applicants to negate any such risk from A1’s family or her creditors, it appears that the Board had also failed to make proper or adequate enquires as to how A1 would be able to cope as a single mother without any family support and with an autistic child who has never lived or attended the local education in Indonesia, when the relevant COI before the Board clearly revealed the many difficulties and dangers faced by single mothers and illegitimate children in Indonesia (see [98] – [116] of the Board’s Decision).

16.Moreover, it seems that the Board just decided the Applicants’ claims as one composite claim of A1 without giving separate or sufficient consideration to the personal circumstances of A2 as an illegitimate child with autism and without having ever lived or attended school in Indonesia or even speaks the language in accordance with the propositions laid down in Fabio Arlyn Timogan and Re Jasvir Singh as noted above.                         

17.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, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and therefore grant leave to the Applicants to do so based on the grounds (1) that the Board failed to properly or adequately consider the risk of harm to A1 as a single mother having given birth to an illegitimate child in a Muslim community and in particularly from her family as members of the Muhammadiyah organization; and/or (2) that the Board failed to properly or adequately assess the option of internal relocation to the Applicants; and/or (3) that the Board erred in law in failing to separately and adequately consider the personal circumstances of A2 in dismissing his claim together with that of A1.

18.Accordingly, I direct:

(1)  that the Applicants shall within 14 days file and issue the originating summons based on the grounds stated above, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party; and

(2)  that A2 be represented by the Official Solicitor for his judicial review application pursuant to Order 80, rule 2 of the RHC.  

Dated the 4^th day of October 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