Suliyati and Another v. Torture Claims Appeal Board

HCAL 404/2019

[2024] HKCFI 3088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 404 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 Applicant in open court and the 2nd Applicant being excused (“the Applicants”);

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to amend Form 86 to include the 1^st Applicant’s son, Suliyati Tamang Alvin Faiz as the 2^nd Applicant be granted;

2.  Extension of time for the application for leave to apply for Judicial Review be granted;

3.  Leave for the Applicants to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 September 2017 be granted; 

4.  The 2^nd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

5.  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

6.  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 46-year-old national of Indonesia who last arrived in Hong Kong on 7 October 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 7 October 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 January 2014, she did not depart and instead overstayed, and was arrested by police on 23 December 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay the loan borrowed for her former husband for his failed business, and while released on recognizance pending the determination of her claim, A1 formed a relationship with a Nepalese man and subsequently gave birth to their son, the 2^nd Applicant (“A2”) on 6 September 2016, and for whom she also raised a non-refoulement claim on the same basis.

2.A1 was born and raised in Village Locondong, Sub-district Rawalo, District Banyumas, Central Java, Indonesia. After leaving school she worked as a domestic helper in Singapore where she met her former husband, and in 2001 they moved back to Indonesia where they married and raised a family with 2 children.

3.In 2005 her former husband started his own furniture business in Jakarta with the help of a loan borrowed from a local money-lender with her parents’ land as security and with A1 and her mother as the borrowers under the loan agreement to repay the loan within 1 year by monthly instalments with money sent by her husband from Jakarta.

4.However, several months later her husband lost his business and was unable to send any money, and after a quarrel between the 2 of them, A1 subsequently divorced her husband, whereupon the money-lender confiscated her parents’ land and made threats against her and her mother for the balance of the loan.

5.Eventually A1 managed to persuade her creditor to give her more time to settle the remaining debt by coming to Hong Kong to work as a foreign domestic helper and to remit money to Indonesia to repay the debts by monthly instalments, which she did when she first arrived in Hong Kong in February 2009 to start her employment, but when her last employment was prematurely terminated on 12 January 2014, and when she was without any income to remit money to her creditor who then threatened her again, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection to the Immigration Department.

6.While being released on recognizance pending the determination of her claim, A1 formed a relationship with a Nepalese man and subsequently on 6 September 2016 gave birth to A2, and for whom she also raised a non-refoulement claim based on her claimed risk, and for which she completed a Non-refoulement Claim Form (“NCF”) on 14 March 2017 jointly for herself and A2, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 11 April 2017 the Director of Immigration (“Director”) rejected the claims of both A1 and A2 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 the claims of A1 and A2 and assessed the level of risk of harm from A1’s creditor upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill A1, let alone A2 whom her creditor knew nothing about, other than to press her to repay her debts, that in any event it was a private monetary dispute between A1 and her creditor only without any official involvement that state or police protection would be available to the Applicant 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 258 million people spread across a vast territory 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.

9.On 24 April 2017 A1 lodged an appeal for herself and A2 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 4 September 2017 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 19 September 2017 their appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found significant inconsistencies discrepancies and lack of details in A1’s evidence that it doubted her claim of fear of harm from her creditor that caused her to overstay in Hong Kong to seek protection as unreliable and that it was her fabrication so as to prolong her stay in Hong Kong, that even if such claim were true that the risk arose from a monetary dispute between A1 and the loan shark that it is not satisfied that the loan shark would be motivated to harm her as claimed, while accepting that A1 upon returning to Indonesia as a single mother with her son but without her partner will face some difficulties but not to the level of severity under any of the applicable grounds that the claims of both A1 and A2 for non-refoulement protection failed on all applicable grounds.    

11.On 13 February 2019 A1 filed a Form 86 with only herself named as the applicant for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date, and as she was also seriously late with her application, for which she failed to provide any explanation in her Form or affirmation, nor did she attend the subsequent scheduled hearing for her application without any explanation. Accordingly this Court on 3 April 2023 refused to extend time and dismissed her late application for judicial review.

12.Upon A1’s subsequent appeal to the Court of Appeal, and upon being satisfied that A1 had in fact all along intended to include A2 in her application for judicial review but did not name him as an applicant in the Form 86 due to her ignorance, and that she did not attend the scheduled hearing of her application before the Court of First Instance (“CFI”) as she never received the notice of hearing, and upon its subsequent return to the CFI as undelivered post, the Court of Appeal on 29 February 2024 allowed her appeal, set aside the Court’s dismissal order, and remitted the leave application for judicial review of both A1 and A2 to this Court for reconsideration (CACV 80/2024 [2024] HKCA 356).

13.Accordingly, their application was amended to include A2 and was restored for hearing before this Court, for which A1 attended for herself and A2, but as noted above that they were already seriously out of time with their application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

14.As the last day of the three-month period for them to file their Form 86 fell on 19 September 2017, the Applicants were therefore more than 13 months late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicants’ case, a delay of more than 13 months must be considered as extremely substantial and inordinate, for which A1 explained at the hearing that being unrepresented she was not aware of the law, that she might have changed her address at the material time and hence never received the Board’s decision in the mail, and that it was until much later when she reported on her recognizance that she was told of the decision by her immigration officer, but by then she was already seriously out of time with their application.

16.The record shows that the Board’s decision was sent on the same day of 19 September 2017 to her then reported address at Room A, 3/F, 625 Fuk Wa Street, Cheung Sha Wan, Kowloon without being returned through undelivered post, and although I note that she had given a different address in her Form 86, since it is the duty of a claimant to update the authorities of any change of address as soon as practicable, and while ignorance of the rules cannot be accepted as an excuse not to comply thereof, I am not satisfied that the Applicants have provided a valid justification for their such serious delay.            

17.As for the merits of their intended application, as noted above that A1 failed to put forward any proper ground in the Form or affirmation for their intended challenge of the Board’s decision, nor was she able to do so at the hearing other than just repeating their claims as before.

18.Nevertheless, given the seriousness of the issue at hand, and the fact that A2 is a minor at the present age of only 8 years old was without legal representation in his appeal before the Board, or for that matter in his present application now before me, the Court shall adopt an enhanced standard in scrutinizing the Board’s decision in rejecting his claim, of which the Court of Appeal has held in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh  & Others [2021] HKCA 53, that non-refoulement claims of children even if based on the same set of primary facts of their parents are separate from those advanced by their parents and need to be considered as such having regard to their personal circumstances and matters which may support potential minor-specific non-refoulement bases but which may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, 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.

19.In the present case, the Board dismissed the appeals of both A1 and A2 essentially on its assessment of A1’s claim of fear of harm from her creditor as not truthful or credible due to various inconsistencies and discrepancies in her evidence, and that whatever difficulties that they may face upon their return to Indonesia without A2’s father would not reach the level of severity under any of the applicable grounds, but it seems to me that the Board had decided on both of their claims as if they were one composite claim without making separate consideration as to the personal circumstances of A2 of being an illegitimate child born to a Nepalese father outside Indonesia without ever been to that country or received any education there, just to name a few potential matters relevant to his claim which may lead to discrimination by the local Muslim community and/or form the basis for persecution risk.

20.As regard A1’s claim, as noted in my previous decision that the Board with the benefit of her in evidence was entitled to reject the credibility of her account of events as to her claim of having borrowed a loan from a money-lender and the subsequent threats therefrom that caused her to overstay in Hong Kong, but given that she is the defacto custodian and primary carer of A2 that it is my view that the Board should have conducted its assessment of her situation and/or impact of the risk that A2 may face relevant to his own claim upon their return to Indonesia.          

21.In the premises, and for these reasons I am of the view that the Applicants’ intended application for judicial review of the Board’s decision is reasonably arguable on the ground that the Board erred in law in failing to separately and adequately consider the personal circumstances and matters of A2 for any potential non-refoulement bases specific to him, and as such also failed to consider or assess such effect or impact on A1 as his primary carer and custodian upon their return to Indonesia, and instead dismissed their appeals essentially on the basis that A1’s claim was not credible, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 

22.Accordingly I extend time to their late application, and grant leave to the Applicants to apply for judicial review of the Board’s decision on the ground stated above, and direct that they shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party and that A2 shall be represented by the Official Solicitor to continue with his judicial review application.

Dated the 7^th day of November 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