Sudartatik Paijo and Another v. Torture Claims Appeal Board

HCAL 2048/2019

[2024] HKCFI 2610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2048 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 Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The 1^st and 2^nd Applicants’ application for leave to apply for judicial

review be dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 55-year-old national of Indonesia who last arrived in Hong Kong on 31 August 2007 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 August 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 27 February 2008, she did not depart and instead overstayed in Hong Kong, during which she formed a relationship with a Nepalese man and subsequently became pregnant with their child, whereupon she surrendered to the Immigration Department on 22 February 2011 and raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband over her said relationship with the Nepalese man, and upon subsequently given birth to her daughter, the 2^nd Applicant (“A2”) on 8 March 2011, A1 also raised a torture claim for her on the same basis, and after their torture claims were rejected, A1 then sought non-refoulement protection for herself and A2 jointly on the same basis as before.  They were subsequently released on recognizance pending the determination of their claims.

2.A1 was born and raised in Village Mulyoasri, Sub-district Pesanggaran, District Banyuwangi, East Java, Indonesia.  After leaving school she married her husband who was a farmer in the same village, and to help out with their family’s income A1 in 1995 started to come to Hong Kong to work as a foreign domestic helper, returning to Indonesia only for holidays.

3.In 2007 her relationship with her husband started to deteriorate after having discovered his affair with one of her friends, and over which she had a big fight with her husband that she decided to leave their marriage by moving back to her mother’s home, and then returning to Hong Kong to continue with her employment.

4.However, her husband continued to call her on the phone to plead with her to resume with their marriage, and when she refused, he then made threats against her, and when her last employment was terminated in February 2008, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, during which she formed a relationship with a Nepalese man in Hong Kong, and when she subsequently became pregnant with their child, she therefore surrendered to the Immigration Department and raised her torture claim, and after giving birth to A2 in March 2011, she also raised a torture claim for A2, and after their torture claims were rejected, A1 then sought non-refoulement protection for both of them on the same basis, for which she completed a Supplementary Claim Form (“SCF”) jointly for herself and A2 on 6 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 29 March 2018 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the remaining applicable grounds other than torture risk including 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.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and assessed the level of risk of harm from A1’s husband upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from A1’s husband, that there is no evidence of any real intention of A1’s husband to seriously harm or kill either of them other than threatening words uttered from anger, that in any event it was a private domestic dispute between A1 and her husband only 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 there are laws in Indonesia to protect single or unwed mothers and illegitimate children as well as supports and assistances from various governmental departments and NGOs for the Applicants, while reasonable internal relocation alternatives are also 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 A1’s husband to locate them.

7.On 13 April 2018 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended 2 oral hearings on 1 November 2018 and 22 February 2019 before the Board during which A1 gave evidence for both Applicants and answered questions raised of their claims by the Adjudicator for the Board.  On 4 June 2019 their appeals were dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicants’ claims and A1’s evidence of fear of harm from her husband over her relationship with another man in Hong Kong but found no reliable evidence of any real intention of her husband to seriously harm or kill her or her daughter other than threats uttered in angry words, and that in any event it was a private relationship dispute between A1 and her husband without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia if resorted to as well as reasonable support and assistance from various governmental departments and NGOs for single women and illegitimate children in Indonesia that it is not accepted that either Applicants will face any proscribed forms of harm from anyone upon their return to Indonesia that the Board concluded that their claims for non-refoulement protection failed on all applicable grounds.    

9.On 18 July 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for their intended challenge:

(1)   That the Board reached the decision wrongly in assessing their non-refoulement claims as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that their lives must be protected by the criminal law from extra-judicial killings that they may face if deported back to their home country;

(2)   That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in the Applicants’ case which led to an unfair outcome of rejecting their claims and that the state would be rendered liable to them by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)   That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the personal background and experience of the Applicants in assessing their claims;

(4)   That the Board had listed relevant COI which supported the Applicants’ aversions that the police in their country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicants’ case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)   That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicants’ argument that corruption and incompetency of the administration in their country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicants’ assertions;

(6)   That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicants’ explanations and unreasonably required them to respond to questions that they were not in a position to offer any response;

(7)   That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicants’ country making the persecution of the Applicants effectively persecution by the State; and

(8)   That the Adjudicator made a ruling to dismiss the Applicants’ appeals based on findings which the Adjudicator ought to allow and thus the decision was irrational.         

10.These are however all just bare and vague assertions of the Applicants containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were State Acquiescence or extra-judicial killings to the Applicants’ case when on the factual basis of even their own case that it was a private relationship dispute between A1 and her husband only without any official involvement or political element at all.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

11.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.

12.In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claim even if real is a private relationship dispute between A1 and her husband without any official involvement that state/police protection would be available to the Applicants if returned to Indonesia, while it has also been found by the Director that such risk even if real is a localized one and that it would not be unduly harsh for A1 to relocate with A2 to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.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 claims of either Applicants.

14.I am of course mindful of the fact that A2 is a minor at her present age of 13 years old was without legal representation in her appeal before the Board, or for that matter in her present application before the Court as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A, and hence it would be separately consider and examine whether A2’s claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases but which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that the claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that 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.

15.In the present case with A2, and having subjected the Board’s decision to rigorous scrutiny, I am satisfied that the board did do so in its consideration and determination of her non-refoulement claim separately from her mother’s and specifically to her own personal circumstances as an illegitimate child of Indonesia citizenship (see [46] – [52] & [56] – [57] of the Board’s decision) by taking into account of the relevant COI specific to her circumstances if returned to Indonesia.  As such, and in the absence of any argument from her mother to the contrary, I do not find any underlying matter which might support A2’s minor-specific non-refoulement ground or basis that had not been advanced to the Board or to the Court due to lack of legal representation for her.     

16.Moreover, A1 on 26 March 2024 filed an affirmation requesting to “close “ their cases, and whereupon both Applicants were subsequently on 18 July 2024 removed from Hong Kong to return to Indonesia.

17.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in view of their subsequent return to Indonesia, I accordingly dismiss their leave application.

Dated the 26^th day of September 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