Nanik Sulastri Kuwat and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1365/2019

[2024] HKCFI 2259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1365 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The 1^st applicant is the mother. The 2^nd and the 3^rd applicants are her daughters.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 9 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.Initially, Form 86 only has the 1^st applicant’s name without the 2^nd and the 3^rd applicants whilst they were also in the Board’s Decision. This Court therefore made enquiry with the 1^st applicant.

4.Before the Court, the 1^st applicant applied to add her two daughters as applicants as well. She did not put their names in Form 86 because she thought that once she is the applicant, her daughters will automatically be added as applicants as well.

5.I grant leave to add the 2^nd and the 3^rd applicants in Form 86.

6.However, the 1^st applicant informed me that she had another daughter, whose application for non-refoulement claim is being processed.

7.In the circumstances, I shall deal with these 3 applicants. The youngest daughter’s application has to be dealt with later. The 1^st applicant may consider whether she will make the application for the youngest daughter after they have the result of this application.

8.The 1^st applicant is the guardian ad litem for the 2^nd and the 3^rd applicants, whose cases depend on the facts of the 1^st applicant’s.

The applicant

9.The applicant, aged 44, is a national of Indonesia. She had been in Hong Kong as a foreign domestic helper since 1998. She last entered Hong Kong on 16 December 2006 and was permitted to remain as a foreign domestic helper until 10 July 2008, or two weeks after the termination of her employment contract, whichever was earlier. On 7 August 2007, her employment contract was prematurely terminated. She did not depart after the stipulated deadline and had overstayed since 22 August 2007. On 16 September 2008, she surrendered to the Immigration Department and shortly thereafter, she gave birth to her older daughter on 21 September 2008. She lodged a torture claim for herself and her older daughter on 28 January 2010, which was rejected by the Director’s Notice of Determination dated 25 September 2012. Upon implementation of the unified screening mechanism (“USM”), the applicant and on behalf of her elder daughter, made a claim for non-refoulement protection on 5 March 2013. On 16 July 2014, the applicant gave birth to her younger daughter. She made a non-refoulement protection also on her behalf on 6 May 2015. In the circumstances, the Director jointly assessed their non-refoulement claims in its decision.

10.In summary, the applicant claimed that she would be harmed or killed by an individual named Minardi due to a loan dispute if she is returned to Indonesia. According to the applicant, she claimed that she borrowed around one to two millions Indonesia Rupiahs from Minardi sometime in 1998 in order to defray her agency fees to come to work in Hong Kong. When she became pregnant with her elder daughter in 2008, the applicant was informed via her parents that Minardi was furious when he learnt that she was to be married and pregnant in Hong Kong. Minardi apparently was disappointed at her and she believed it is likely he was heartbroken, thus causing him to threaten her parents as he was unable to have her. She contacted Minardi subsequently in the same year to apologise but he still threatened to kill her. In 2010, she was informed by a neighbor in Indonesia who was confronted by Minardi seeking her whereabouts. The applicant’s father also said Minardi would come to visit their family’s home from time to time to enquire when she will return to Indonesia. Details of her claim are set out at [10] of the Notice of Decision dated 28 December 2017 by the Director (the “Director’s Decision”).

11.In light of her previous torture claim, the applicant’s non-refoulement claim was assessed on all applicable grounds except Torture risk^[1] (the same was applied to her older daughter). As for the applicant’s younger daughter, her claim was assessed on all applicable risks[2].

The Director’s Decision

12.The immigration officer assessed all applicants’ case as composite claim. without separate consideration for the 2^nd and the 3^rd applicants, who are minors.

13.By way of the Director’s Decision, the Director dismissed the applicants' claim. In elaboration, the Director found that: (i) the risk of harm was assessed to be low as the 1^st applicant was only verbally threatened by Minardi on one occasion and he never physically harmed her; nor did he hurt or harm her parents [21]; (ii) there was no information to indicate that Minardi had resources to locate and harm her and her children, let alone kill them [22]; (iii) state protection was available which further lowered or negated the level of risk [24] – [29]; and (iv) internal relocation was available and reasonable [30] and [31].

The Board’s Decision

14.The applicants appealed the Director’s Decision to the Board. On 29 March 2019, the Board conducted an oral hearing for their appeal, during which the 1^st applicant gave evidence.

15.Whilst the Board was willing to accept the factual circumstances of the 1^st applicant’s claim regarding her dispute with Minardi, it did not accept there was a real risk of harm if she is returned to the Indonesia [26]. There were several factors which led to the Board’s finding, such as: (i) there has been no harm inflicted upon herself and her family members in the past, which was confirmed as early as the 2012 interview before the Director [27]; (ii) her evidence regarding Minardi’s visit to the family home was vague, rehearsed, lacked specificity and unconvincing, which was rejected by the Board [28] and [29]; (iii) the lapse of time of some 11 years since her last contact with Minardi further indicated there was no desire for him to continue to locate her [30] and [31]; and (iv) she had exaggerated and embellished her claim in order to seek non-refoulement protection upon considering the totality of evidence and information [32]. As for the applicable grounds of non-refoulement protection, the Board held the applicant could safely and reasonably relocate to other regions of Indonesia [45] and there was no involvement by the state as the dispute with Minardi was private in nature [46].

16.For the above reasons, the Board rejected the 1^st applicant’s claim and dismissed her appeal.

17.As to the 2^nd applicant and the 3^rd applicant, since the Board did not accept the 1^st applicant’s evidence in relation to Minardi would harm her if she returns to Indonesia, the Board considered that there will not be any harm by Minardi to the 2^nd and the 3^rd applicants if they return to Indonesia [32]. The Board went on to consider their nationality if they return to Indonesia. In paragraph 33 of the Board’s Decision, the Board said:

“33. In addition, the Appellant’s evidence at the hearing was that she has discussed with her husband, and that if the Appellants were to return to Indonesia, her husband would go to Indonesia with them. Also, the Appellant’s oral evidence at the hearing indicates that she is aware that her marriage to her husband in Hong Kong would be legally recognized in Indonesia. Based on the available information, I consider there is no real risk of the Appellants facing home by reason of family separation.”

18.The Board further considered internal relocation for the applicants, including the children. Having considered the Country of Origin Information, the Board found that the risks are localized [39]. Further information from the COI on assistance from the 1^st applicant’s families and government and non-government services in Indonesia, the Board found:

“42. … … there is a range of government and non-government services available to assist women and children all over Indonesia. … I consider that the Appellants could safely and reasonably relocate to another area in Indonesia without undue hardship, such as Jakarta, Surabaya or one of the urban areas, if they wish to do so upon return.”

Application for leave to apply for judicial review of the Board’s Decision

19.The applicant has filed Form 86 dated 21 May 2019 for leave to apply for judicial review of the Board’s Decision.

20.In the 1^st applicant’s affirmation in support of their application, the 1^st applicant says she is not satisified with the Board. She has not raised any specific reason to challenge the Board’s Decision.

DISCUSSION

21.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she understood the Board’s Decision and she was free to state her case before the Board. She further said that she wanted her children to finish their education in Hong Kong.

23.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

24.For the reasons given above, the Board rejected the 1^st Applicant’s evidence in relation to her claimed fear of harm. There is no valid reason from the 1^st applicant to challenge the Board’s Decision.

25.In relation to the children in this case, the Board had separately considered their situations on the evidence before it. The Board is not required to made wild guesses on all possibilities of minor specific issues. See paragraph 43 of Court of Appeal’s decision on Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020:

“43. On a fair reading of the Board’s Decision, notwithstanding that the Adjudicator did not discuss the case of the children under a separate section, it is clear that she had given due consideration to their claims put forward before the Board. The Adjudicator did not reject their claims simply because she rejected the mother’s claim.”

26.I am unable to find any specific issue, which was clear before the Board, but was not considered by the Board before making its decisions.

27.The 1^st applicant has raised no valid ground to challenge the Board’s Decision in relation to the 2nd and the 3rd applicants.

28.The applicants fail to show that they or any of them have any realistic prospect of success in their proposed judicial review.

CONCLUSION

29.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

30.I shall treat non-legal representation of the 2^nd and 3^rd applicants as a mere irregularity without rendering their applications a nullity.

The 1^st and 2^nd applicants appeared in person and 3^rd applicant being absent.