Utami Windri v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1831/2019 on BabelCite. This High Court CFI judgment was delivered on 19 November 2024.
1. This is an application by Madam Utami Windri (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 10 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 15 November 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 2 cases
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HCAL 1831/2019 [2024] HKCFI 3300 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1831 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai:
Observations for the Applicant: Introduction 1.This is an application by Madam Utami Windri (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 10 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 15 November 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant 2.The Applicant is an Indonesian. She was born on 15 January 1980 in Central Java, Indonesia. She received 9 years of education and had worked as a foreign domestic worker in Singapore and Hong Kong. The Claim 3.The Applicant claimed that she would be killed by her brother (“Brother”) upon her return to Indonesia because she had an illegitimate son (“Son”) with a Chinese permanent resident of Hong Kong (“Hau”). The Applicant said that she had two previous marriages and she bore a child for each of her husbands. She claimed that she had not separated with her second husband but she had no contact with him nor her first husband. 4.The Applicant had a romantic relationship with Hau since mid-2013 and they started cohabiting together in 2015. Son was born in around 2015. 5.The Applicant is a Catholic but claimed that she was born in a traditional Muslim family. Her family members strongly objected to her relationship with Hau because Hau was not an Indonesian and they were not legally married to each other. In a telephone conversation in December 2017, Brother threatened to kill her and burn her belongings if she returned to Indonesia. The Applicant could not contact her family after December 2017 because they changed their telephone numbers. 6.The Applicant claimed that she would be harmed or killed by Brother due to her extramarital affairs in Hong Kong if she were returned to Indonesia. Procedural history 7.The Applicant last arrived in Hong Kong on 8 February 2014 to work as a foreign domestic helper. Her employment was pre-maturely terminated on 13 June 2015. Her visa to stay in Hong Kong had been extended on various occasions but she was required to leave Hong Kong on or before 6 December 2017. The Applicant did not leave Hong Kong within the prescribed period and surrendered to the Immigration Department on 11 December 2017. By written representations of 11 and 29 May 2018, the Applicant lodged the Claim. 8.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
9.By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. 10.On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of a decision by the Immigration Department purportedly made on 10 June 2019 (which in fact was the date of the Board’s Decision). She named the Immigration Department as the proposed respondent and interested party in the Form 86. 11.The Applicant also filed her supporting affirmation on 2 July 2019 (“Supporting Affirmation”). The DOI Decision 12.After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Brother intended to harm the Applicant. The Applicant was only threatened by Brother once over the phone in December 2017. There was no indication that he had ever imposed any actual bodily harm on her. The Applicant’s family members (including Brother) had all changed their phone numbers and stopped contacting the Applicant. The Director did not accept that Brother was interested in pursuing the Applicant or harming her. 13.The Applicant’s problem with Brother was typically a case of domestic dispute and in no way an official matter. State protection would be available. The Director found that the Indonesian authorities might be hesitant to investigate into complaints of domestic violence and there might be some inefficiency problems within the Indonesian police. However, the Director found that there were objective indications in the country of origin information ("COI") that the Indonesian government took steps to improve the situation. The Director found that the Indonesian government was able and willing to protect the rights of its citizens. 14.The Director also found that there were other non-government organizations, such as the Female-Headed Household Empowerment Program (PEKKA) which provided assistance to victims of domestic violence. 15.The alleged threat from Brother was rather localized and could be avoid by relocation. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Surabaya, Brother would have great difficulty in locating her. There was no substantial ground to believe that Brother had the abilities and resources to locate the Applicant nationwide in Indonesia (§15 of the DOI Decision). After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to Surabaya and lead a normal life. 16.For the reasons set out in the DOI Decision, the Director rejected the Claim. The Board’s Decision 17.The Board proceeded on the basis that the events which the Applicant relied on were true and found that the Applicant was concerned with potential “punishment” from “certain quarters in Indonesia” for what she perceived as “moral crimes”. However, the Board found her claim that Brother was among those who were interested in punishing her to be based on flimsy evidence only. 18.The Board found that the Appellant’s fear of persecution in Indonesia was not well-founded and any risk to life as feared by her was neither genuine nor substantial. 19.Because the Board held that the Applicant was not at risk from Brother, who was the only source of risk identified by the Applicant, it found that the Applicant would not face any risk upon her return. 20.The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal. Legal principles applicable to judicial review 21.In a judicial review, the court does not step into the shoes of the decision makers. 22.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
23.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion 24.In the Form 86, the Applicant named the Immigration Department as the proposed respondent and the interested party. At the court hearing of 3 October 2024 (“Court Hearing”), the Applicant confirmed that she intended to seek judicial review against the Board’s Decision. In such case, the proposed respondent should be the Board. At the Court Hearing, I granted leave for the Applicant to amend the Form 86 to name the Board as the proposed respondent (“Amended Form 86”) which the Applicant had done on 16 October 2024. 25.The Applicant referred to an exhibit in the Supporting Affirmation but no document was produced. At the Court Hearing, I directed the Applicant to file a complete copy of the Supporting Affirmation which the Applicant had done on 16 October 2024. She exhibited a copy of the Board’s Decision to the re-filed Supporting Affirmation. 26.In both the Form 86 and the Amended Form 86, the Applicant did not put forward any grounds for her intended judicial review. 27.In the Supporting Affirmation, the Applicant only stated that; “I would like to reject and review the decision made by Immigration Department on my case. They disregard my dangerous situation.” 28.The Board noted the Applicant’s case in §27 of the Board’s Decision that the threat was owing to her extramarital sex and Brother wanted to kill and to burn the Applicant and Son. 29.The Board was of the view that Hau is a Chinese Hong Kong permanent resident and Son by descent could stay in Hong Kong. The Board considered that the Claim only concerned the Applicant. If the Applicant was to be returned to Indonesia, she would go by herself without Hau and Son. In such situation, her life would not be at risk. (§30 of the Board’s Decision) 30.The Board found that the Applicant’s fear of persecution risk was more imaginary than real. The reason for such finding given by the Board was: “If she is living alone in Indonesia without [Hau] and [Son]. I believe no one would bother about her marital past.” (§31 of the Board’s Decision) 31.The Board further found that the Applicant “is safe and sound in Indonesia by herself and that any risk to life as feared by her is neither genuine nor substantial,” (emphasis added) (§35 of the Board’s Decision) This finding is also premised on the Applicant returning to Indonesia without Son. Based on such finding, the Board found that the Applicant’s claims under BOR 3 risk and BOR 2 risk failed. (§§48 and 51 of the Board’s Decision) 32.The Board found that in the Applicant’s torture risk claim, the “torturer” would be Brother. Brother was a tyre factory worker and could not be considered as a State Actor. Her case was not “torture” case as defined by section 37U(1) of the Ordinance. Thus, her claim for protection under torture risk failed. 33.From above, it can be seen that the Board rejected the Applicant’s claim for protection under persecution risk, BOR 2 risk and BOR 3 risk premising on the assumption that the Applicant would be returned to Indonesia by herself without Hau, her partner, and Son (“Core Assumption”). 34.The Core Assumption was premised on another assumption that Son could live in Hong Kong by himself or that someone would be able to take care of Son in Hong Kong. Son was born in 2015. As at the date of the Board’s Decision (i.e. 10 June 2019), Son was about 4 years old. It was out of question that Son could live in Hong Kong by himself. The Board made no finding on who was taking care of Son as at 2019 and who would take care of Son if the Applicant were returned to Indonesia. Without such finding, the Core Assumption lack factual and evidential basis. For the Board to make a finding without factual or evidential support, it is reasonably arguable that the Board erred in law. 35.At the Court Hearing, the Applicant confirmed that Son is a Hong Kong permanent resident and is now 9 years old. She was the one who had been taking care of Son. She said that she might return to Indonesia without Hau but she could not leave Son in Hong Kong and return to Indonesia by herself. I note that this had been made known to the Board and the Board remarked that: “This could become an awkward situation in Indonesia.” (§29 of the Board’s Decision) 36.The Applicant further told the court at the Court Hearing that although she was still living with Hau, Hau was unable to support Son and Son had been receiving comprehensive social security assistance. 37.The Board found that the Applicant might return to Indonesia without Son. The Board made no finding as to who would take care of Son if the Applicant would be returned to Indonesia by herself. As such, in making such finding the Board had totally disregard the fate of a 4 years old (at the material time) boy. I am of the view that it is reasonably arguable that such finding was Wednesbury unreasonable. 38.Furthermore, the Board accepted in §27 of the Board’s Decision that the Applicant’s feared threat from Brother was owing to her extramarital affairs with Hau. Even if the Applicant would return to Indonesia alone, it would not alter the fact that she had had extramarital affairs with Hau. To find that the feared threat owing to the Applicant’s extramarital affairs would disappear if the Applicant would return to Indonesia by herself without Hau and Son does not make logical sense to me. If the Board made a finding without supporting evidence, it is reasonably arguable that the Board had erred in law or such finding was irrational. Conclusion 39.For reasons stated above, I am of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in the Po Fun Chan case (supra). 40.I note that above is not exactly how the Applicant argued this application in the Form 86 and the Supporting Affirmation. However, I bear in mind the high standards of fairness required from this court and the obligation of this court in conducting rigorous examination and anxious scrutiny on the Board’s Decision on top of argument put forward by the Applicant for her application in dealing with claims for non-refoulement protection. 41.I would grant leave to the Applicant to apply for judicial review. In accordance with Order 53 rule 5 of the Rules of the High Court, the Applicant should file and serve an originating summons within 14 days from the date of this judgment. The originating summons should set out the grounds that the Board had erred in holding that the Applicant’s feared harm would not materialized if she returned to Indonesia by herself and that the Board was Wednesbury unreasonable to find that the Applicant might return to Indonesia by herself leaving her 4 years’ old son (as at the date of the Board’s Decision) in Hong Kong. Dated the 19th 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
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