Ida Nengsih and Others v. Torture Claims Appeal Board

HCAL 414/2022

[2024] HKCFI 556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 414 OF 2022

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;

Order by Deputy High Court Judge Bruno Chan:

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 43-year-old national of Indonesia who last arrived in Hong Kong on 19 January 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 June 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 10 March 2011, she did not depart and instead overstayed in Hong Kong, during which she formed a relationship with a Pakistani man and out of which she gave birth to their elder daughter, the 2^nd Applicant (“A2”) on 4 June 2020, and was arrested by police on 6 June 2020.  After they were referred to the Immigration Department for investigation, A1 raised a non-refoulement claim for herself and A2 jointly on the basis that if they returned to Indonesia they would be harmed or killed by A1’s husband for her extra-marital relationship with the Pakistani man and for having given birth to an illegitimate child from the relationship.  They were subsequently released on recognizance pending the determination of their claim.

Non-refoulement Claims of A1 & A2

2.A1 was born and raised as a Muslim in DS Kerta Jaya, KC Tambak Dahan, KB Subang, Jabar, Indonesia. After leaving school she married her husband Warim and raised a family with a son in her husband’s home district in Renca Mulia, DS Jati Mulia, KC Compreng, KB Subang, Jabar.

3.As her husband was frequently out of work and as a result there were often quarrels between them over financial matters, during which he would become abusive and violent towards her by slapping and hitting her, and so in 2001 A1 started to work as a hawker to help out with the family income, and in 2008 she came to Hong Kong to work as a foreign domestic helper and remitted money to him every month for the support of their son.

4.In 2011 A1 formed a relationship with a Pakistani man Waqas in Hong Kong who was a local resident, and when her husband subsequently found out about it from one of his friends who worked in Hong Kong, he threatened to kill her when she returned to Indonesia, and so after her last employment was terminated on 10 March 2011, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she ceased all further contact with her husband, and continued with her relationship with Waqas.

5.In 2019 A1 intended to marry Waqas, and so she through her sister in Indonesia suggested to her husband to have a divorce between them, but which was refused by husband who maintained his threats to kill her when she returned to Indonesia.

6.Shortly thereafter A1 became pregnant with A2, of which her husband later also learnt about it and made similar death threats against A2, and upon giving birth to A2 on 4 June 2020 in a hospital in Hong Kong, A1 was then arrested by police for overstaying in Hong Kong and was referred to the Immigration Department for investigation when she raised her non-refoulement claim for protection for both herself and A2, and for which she completed a joint Non-refoulement Claim Form (“NCF”) on 18 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Director’s Decision on A1 & A2             

7.By a Notice of Decision dated 21 May 2021 the Director of Immigration (“Director”) rejected their 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”).

8.In his decision the Director took into account of all the relevant circumstances of their claims and assessed the level of them being harmed or killed by A1’s husband Warim upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from Warim, that there is no evidence of any real intention of him to harm or kill either of them given the fact that even on A1’s own case that their marital relationship had ended years ago since she left the country, that in any event it was a private marital dispute between the 2 of them without any official involvement that state or police protection would be available to both A1 and A2 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that sufficient supports and assistances from various governmental departments and NGOs would be available to help them if needed as well as reasonable internal relocation alternatives 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 safely 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 her husband to locate them.

Board’s Decision on A1 & A2

9.On 31 May 2021 and 1 June 2021 respectively A1 lodged an appeal for herself and A2 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they jointly attended an oral hearing on 13 December 2021 before the Board with their lawyer from DLS during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board and with submission made on their behalves by their lawyer.  On 12 April 2022 their appeals were dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in their claim that it doubted their claim of fear of harm from that caused A1 to leave her home country to come to Hong Kong to seek protection, and that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicants upon their return to as well as reasonable internal relocation for them to move safely to other part of the country without any risk of being located that their claim for non-refoulement protection failed on all applicable grounds.

Non-refouleemnt Claim of A3   

11.Meanwhile on 20 July 2021 A1 gave birth to her second daughter, 3^rd Applicant (“A3”) out of her relationship with Waqaz in Hong Kong, and subsequently also raised a non-refoulement claim for her to the Immigration Department on the same basis as her own claim that her husband having learnt of her giving birth to A3 also made death threats against A3 for the same reason as before, and for which A1 also completed a NCF for A3 and attended another screening interview before an immigration officer with the same lawyer from DLS.

Director’s Decision on A3

12.By a Notice of Decision dated 14 June 2022 the Director also rejected A3’s claim on all the applicable grounds after having assessed the level of risk of harm from A1’s husband upon her return to Indonesia with her mother due to the absence of any past threats or ill-treatment from him, that there is no reliable evidence that A1’s husband was aware of her existence or of any real intention to harm or kill her, that in any event it was a private personal dispute between him and A1 only without any official involvement that state or police protection would be available to A3 if resorted to, and that reliable COI show that there are governmental departments and NGOs to offer supports and assistances to single parents and children in need as well as reasonable internal relocation available within 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 A3 to move safely with her mother to other part of the country away from her mother’s home district to large cities such as Jakarta where it would be difficult if not impossible for A1’s husband to locate them.     

Board’s Decision on A3

13.On 21 June 2022 A3 by her mother A1 lodged an appeal to the Board against the Director’s decision, and on her behalf A1 attended an oral hearing on 28 November 2022 together with her lawyer from DLS before the same Adjudicator for the Board during which A1 relied on the same material and information as before and available before the Board and answered questions raised of A3’s claim and with submissions made by her lawyer but without raising any new or additional matters which may be specific to A3’s situation to the Board.  On 6 December 2022 A3’s appeal was dismissed by the Board which also confirmed the Director’s decision.     

14.In this decision the Board again found no evidence of any real intention of A1’s husband to harm or kill A3’s mother let alone A3 herself, that any threats which may have been uttered by A1’s husband were likely out of a spur of the moment over private domestic disputes between A1 and her husband without any official involvement that state or police protection would be available to A3 upon her return to Indonesia if needed, and that according to reliable COI that necessary and relevant support and assistance from various governmental departments and NGOs will also be available as well as reasonable internal relocation for A3 to move safely with her mother to other areas away from her home district without any risk of being located that A3’s claim also failed on all the applicable grounds.      

Leave Application for Judicial Review

15.On 31 May 2022 A1 filed the Form 86 for herself and A2 for leave to apply for judicial review of the Board’s first decision, and subsequently also with leave from this Court to include A3 in the same application for leave to apply for judicial review of the Board’s second decision after unsuccessful Legal Aid applications for her daughters, but no proper ground for seeking relief was given in the Form or in A1’s supporting affirmation of the same date for either case, nor was A1 able to do so at the hearing of their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their processes before the Board or in either of its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

16.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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

17.In the Applicants’ case, the Board dismissed their claims essentially on its adverse findings on A1’s credibility for the thorough and detailed analysis and reasoning set out in its decisions with the benefit of hearing A1 in her oral evidence and answers to questions raised of A1’s and her daughters’ claims, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

18.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicants’ claims if real are localized and that it is not unreasonable or unsafe for the Applicants to relocate to other part of, there is simply no justification to afford them with non-refoulement protection in Hong Kong: See TK vJenkins & Anor [2013] 1 HKC 526.

19.I am of course mindful of the fact that both A2 and A3 are still minors at only 3 and 2 years old respectively but without legal representation in these proceedings as required by Order 80 rule 2 of the RHC, and that even though based on the same set of primary facts of their mother’s that their non-refoulement claims must be considered separately from the claim advanced by their mother having regard to their personal circumstances before the Board, and that the Court needs to be satisfied that the Board had achieved high standards of fairness in dealing with their claim and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board: See Fabio Arlyn Timogan [2020] HKCA 971.

20.The fact is that in their separate appeals before the same Board, both A2 and A3 were represented by the same lawyer from DLS who did not raise any underlying matter that may support minor-specific non-refoulement grounds for either of them before the Board, and that having rejected their mother’s case of fear of being harmed by her husband upon return to Indonesia, the Board did separately consider and reject their respective claims of risk based on the evidence that A1’s husband had not done any harm to either of them or had any real intention to do so, a conclusion of facts which the Board was perfectly entitled to make on the evidence presented by A1 and her lawyer to the Board. As such, I am satisfied that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced by A1 or their lawyer for either A2 or A3 before the Board.                     

21.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 each of the Applicants’ claims, and as there is no merit in their intended judicial review notwithstanding the lack of legal representation for A2 and A3 in these proceedings, I shall treat such non-compliance with Order 80 rule 2 as a mere irregularity (see Jasvir Singh & others [2021] HKCA 53 at [33]).

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

Dated the 27^th day of February 2024

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