Hidayat Muhamad Bilal v. Torture Claims Appeal Board

HCAL 186/2024

[2025] HKCFI 211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 186 OF 2024

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 application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 2-year-old national of Indonesia born in Hong Kong to his Indonesian mother who had earlier arrived in Hong Kong to work as a foreign domestic helper but subsequently overstayed and raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her family for having an extra-marital relationship with another Indonesian man in Hong Kong while still being married to her husband in Indonesia.

2.While released on recognizance pending the determination of her claim, she gave birth to the Applicant on 2 December 2022 in Hong Kong, and on his behalf she also raised a claim on the same basis as hers but was separately assessed and determined, and for which his mother completed a Non-refoulement Claim Form (“NCF”) on 12 May 2023 and attended a screening interview for him before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

3.His mother’s non-refoulement claim was subsequently rejected and dismissed by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”) respectively on 31 May 2022 and 7 July 2023, and by a Notice of Decision dated 20 July 2023 the Director also separately rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his 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”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and of his mother and assessed the level of risk of harm from his mother’s family upon his return to Indonesia as low due to the absence of any past ill-treatment from his mother’s family, that there is no evidence of any intention of them to seriously harm or kill him or his mother other than some angry words and empty threats, that in any event it was a private dispute between his mother and her family 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 illegitimate children born to an Indonesian parent or parents are treated in law as Indonesian citizens entitled to all the same rights and benefits as well as help and supports from various governmental departments and NGOs, while reasonable internal relocation alternatives within the country are also available in Indonesia with a large population of 279 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant to move with his mother as an able-bodied adult with working experience to other areas of the country away from his mother’s home district in large cities where it would be difficult if not impossible for anyone to locate him.

5.On 1 August 2023 the Applicant through his mother lodged an appeal to the Board against the Director’s decision, and for which his mother on his behalf attended an oral hearing on 14 November 2023 before the Board during which his mother gave evidence and answered questions raised of his claim by the same Adjudicator for the Board. On 24 November 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

6.In its decision the Board found no reliable evidence of any intention of the family of the Applicant’s mother to harm or kill him at all that it is not accepted that he would face any such risk upon his return to Indonesia with his mother, and that in any event it was a private dispute between his mother and her family only without any official involvement that state or police protection would be available to the Applicant if resorted to as well as reasonable internal relocation alternatives for him to move safely with his mother to other parts of the country away from his home district without any risk of being located, while relevant COI show that the Applicant as an illegitimate child born to an Indonesian parent is considered as an Indonesian citizen under the law and entitled to all the rights and benefits as well as helps and supports from various governmental departments and NGOs upon his return to Indonesia that his claim for non-refoulement protection failed on all applicable grounds.

7.On 18 January 2024 the Applicant through his mother filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date his mother put forward the following grounds for his intended challenge:

(1)  That the Adjudicator did not consider the Applicant’s claim properly and simply dismissed it without even taking time to think about the Applicant’s life;

(2)  That the Adjudicator unreasonably refused to allow him to produce supporting documents without English translation, and also refused to give him time to arrange for English translation for those documents;

(3)  That the interpreter was impatient and unhelpful in his appeal before the Board.

8.These are however all just some bare and vague assertions of the Applicant without any relevant or necessary particulars or specifics or elaborations as to how they apply to his 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 failed properly consider his case or to give him time to arrange translation of his supporting documents, or in what way was the interpreter unhelpful to the Applicant or his mother in his appeal before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

9.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.

10.In the Applicant’s case, the Board rejected his claim essentially on its finding of no reliable evidence of any intention of anyone from his mother’s family or for that matter anyone else in Indonesia to want to harm him for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing his mother in her oral evidence and her answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in such process before the Board or in its decision being clearly and properly identified by or on behalf of the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

11.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate with his mother to other part of Indonesia, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.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 Applicant’s claim.

13.I am of course mindful of the fact that the Applicant is a minor at his present age of only 2 years old was without legal representation in his appeal before the Board, or in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A, and hence it would be necessary to scrutinize and examine whether his claim had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation, as held to be essential by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, and in Re Jasvir Singh [2021] HKCA 53, in that non-refoulement claims by children are separate claims from similar claims advanced by their parents that decision-makers should consider each claim by reference to the personal circumstances of each claimant, that even the children’s claims are based on the same set of primary facts of their parents that it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately, and that it does not follow that from the dismissal of the parents’ claims that the children’s claims could be dismissed without further consideration of their personal situations, as 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.

14.In the Applicant’s case, the fact is that it was considered and determined separately by the same Adjudicator after his mother’s claim had earlier been rejected and dismissed by the Board, and in my view properly and specifically to the Applicant’s own personal circumstances as clearly evidenced in the decision, and as I do not find any merits in his intended application, I shall treat the lack of legal representation for the Applicant in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh supra.

15.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss his application.

16.As the Court has recently been informed by the Immigration Department that the Applicant together with his mother had subsequently been removed from Hong Kong, I accordingly direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant and his mother in Indonesia.

Dated the 21^st day of January 2025

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