Suyanti and Another v. Abu B. Bin Wahab, Esq, Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 132/2017

[2023] HKCFI 2895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 132 OF 2017

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 Hon Fung J:

Leave to apply for judicial review dismissed.

Observations for the Applicants:

1.The 1^st Applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 11 August 2008 with permission to work as a foreign domestic helper until the expiration of her then employment contract, but when her contract was prematurely terminated on 19 September 2009, she did not depart and instead overstayed in Hong Kong until 21 September 2012 when she was arrested by police shortly after giving birth to a daughter the 2^nd applicant (“A2”). After they were referred to the Immigration Department for investigation, the Applicants lodged a non-refoulement claim on the basis that if they returned to Indonesia they would be harmed or killed by A1’s father for giving birth to a child out of wedlock which brought shame to her family. They have since been released on recognizance pending the determination of their claim.

2.A1 was born in Desa Pucangro, Dusun Sidomukti, Gudo Sub-District, East Java, Indonesia where she lived with her widowed father and siblings. She was single but gave birth to a son in 2002 who was taken care of by the Applicant’s father and siblings since 2003 after the Applicant went to work in Malaysia as a domestic helper.

3.The Applicant’s mother was in debt and was unable to repay the loan. When she demanded the Applicant marrying the money lender, the Applicant refused and made arrangements with an employment agency and on 22 March 2006 she departed Indonesia and came to Hong Kong to work as a domestic helper. She overstayed in Hong Kong after her employment contract was terminated in 2009, and in 2011 she started a relation with a Nigerian man and became pregnant with A2 out of wedlock. Upon being informed by the Applicant, her father was furious and threatened that he will kill her and A2.

4.After giving birth to A2 on 20 September 2012 and after their subsequent arrest, A1 lodged a non-refoulement claim and on 22 April 2016 completed a Non-refoulement Claim Form (“NCF”) jointly for herself and A2 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By his decisions dated 30 May 2016 and 17 January 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim 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”).

6.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decisions, but on 31 March 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.On 11 April 2017 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in A1’s supporting affirmation of the same date she put forward the following grounds for their intended challenge:

(1)  Procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(2)  Irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(3)  Irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(4)  Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

(5)  Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicants;

(7)  Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(8)  Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.

8.However, pending determination of this application by the court, the A1 and A2 were removed from Hong Kong by the Immigration Department and repatriated to Indonesia.

9.Accordingly, and pursuant to section 37ZF(1) of the Immigration Ordinance which provides that a non-refoulement claim made by a claimant must be treated as withdrawn if the claimant for whatever reason leaves Hong Kong, I order that the leave application of A1 and A2 be dismissed.

Dated the 8^th day of November 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