Agus Mujiati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 651/2023 and HCAL 230/2022

[2025] HKCFI 525

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 651 of 2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 230 of 2022

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 Applicants in open court;

Order by Deputy High Court Judge Levy:

1.  The Form 86 in the 2^nd Leave Application is amended on the court’s own motion;

2.  Leave to the applicant to withdraw the 1^st Leave Application and the 1^st and 2^nd applicants to withdraw the 2^nd Leave Application; and

3.  The 1^st and 2^nd Leave Applications be dismissed.

Observations for the applicant (Order by Deputy High Court Judge Levy):

Introduction

4.By prescribed Form 86 filed on 20 April 2022 (case number HCAL 230/2022), Mdm Mujati (“A1”) applied for leave to apply for judicial review (“1^st Leave Application”). The intended judicial review was against the decision of the of the Director of Immigration (“Director”) dated 20 December 2021 (“Director’s 1^st Decision”) rejecting A1’s  non-refoulement claim.

5.By prescribed Form 86 filed 2023 on 4 May 2023 (case number HCAL 651), A1 for herself and on behalf of her daughter (“A2”), applied for leave to apply for judicial review (“2^nd Leave Application”). The intended 2^nd judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 14 April  2023 (“Board’s Decision”) dismissing the appeals of both applicants against the Director’s 1^st Decision and the later decision of the Director dated 10 January 2022 (“Director’s 2^nd Decision”) rejecting the applicants’ non-refoulement claims.

6.When the 1^st Leave Application was filed, the Board had not heard the appeal against the Director’s 1^st Decision. Hence, the 1^st Leave Application was procedurally wrong. In the 2^nd Leave Application, A1 has not only filed the intended judicial review on behalf of A2, but also for herself. Thus, the 1^st Leave Application has been subsumed under the 2^nd Leave Application. In the circumstances, it is desirable to consolidate the two Leave Applications, and only necessary to discuss the 2^nd Leave Application in this consolidated intended judicial reviews.

7.In Form 86 of the 2^nd Leave Application, the applicants named the Board and the Director as the proposed respondents. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

8.The background as taken from the Director’s 1^st and 2^nd Decisions and the Board’s Decision can be briefly stated as follows.

9.A1 is a national of Indonesia . A1 came to Hong Kong on 28 January 2019 to work as a foreign domestic helper. During her employment in Hong Kong, she had a relationship with an English married man. In August 2020, A1 discovered she was pregnant from this relationship. On 12 October 2020, A1 terminated the employment contract. Since 19 January 2020, A1 overstayed in Hong Kong. On 18 February 2021, she was arrested by police for overstaying in Hong Kong, and later referred to the Immigration Department. On 22 February 2021, A1 lodged a non-refoulement claim. On 30 July 2021, A1 gave birth to A2 in Hong Kong. As shown in A2’s birth certificate, A2’s permanent resident status in Hong Kong was ‘NOT ESTABLISHED’

10.On 6 October 2021, A1 submitted her Non-refoulement Claim Form (“NCF”) covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5]  The claim was based on her fear of being harmed or killed by her religious Muslim parents for having given birth to a child out of wedlock.

11.On 28 September and 20 October 2021, A1 lodged a non-refoulement claim on behalf of A2, covering the same grounds as A1’s non-refoulement claim. A2’s claim was based on a fear of being harmed or killed by A2’s maternal grandparents as she was an illegitimate child.

12.In the 1^st and 2^nd Director’s Decisions, the Director decided against the applicants’ claims on all applicable grounds. After having taken into account all the relevant circumstances, the Director assessed the claimed risk of harm upon their return to Indonesia to have been low. After having considered the relevant country of origin information (“COI”), the Director also found that state protection and the option of internal relocation were reasonably available to both applicants.  Hence, the appeal to the Board.

13.On 17 October 2022, A1 attended a hearing in person before the Board. A2 was legally represented. After the Board had asked questions from A1 to clarify some of the answers she had provided in the NCF, it found that the material aspects of A1’s case were not believable, and that A1 was not a reliable witness. As for A2’s case, the Board also considered the submissions advanced on A2’s behalf and the various problems A2 claimed to be facing should she be refouled. However, the Board found that the claimed medical, financial, social problems as well as the problems of lacking family support and human trafficking would unlikely materialize. The Board concluded that the claimed risks of both applicants could not be established. The Board further found that the reaction and conduct of A1’s parents were entirely a private domestic matter that did not involve the government. It was further found that the option of internal location was available to each of the applicants. The Board found that each of the applicants failed to establish make out a case, and dismissed their appeals against the Director’s 1^st and 2^nd Decisions.

Legal principles applicable to judicial review and judicial review involving minors

14.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

15.Additionally for A2, who is a minor, the following principles laid down in the Court of Appeal decision of  Fabio Arlyn Timogan v Evan Ruth Esq [2020] HKCA 971 at [34] will be applicable:

“(a) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b) Even if the claims were based on the same set of primary facts, 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. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child. ”

Discussion and conclusion

16.In the 2^nd Leave Application, the applicants have not condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Board is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable. The applicants have failed to identify any arguable error of law by the Board, any relevant matter that the Board had failed to consider or any other reason why the dismissal of their appeal against the Director’s 1^st and 2^nd Decisions was wrong.

17.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles stated above, correctly identified the issues, and observed a very high standard of fairness. The Board considered the claims of each of the applicants individually and cumulatively, as well as the personal circumstances of each of them, but rejected them on the basis of the evidence. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the 2^nd Leave Application, I find that it was perfectly open to the Board to come to its conclusion that A1’s evidence was not credible and that the applicants failed to discharge the burden of proving the asserted fears and risks.

18.For A2’s case, A2’s solicitor was able to properly canvass the appeal before the Board. Having paid special attention to examine A2’s case in the context of high standard of fairness in considering if A2’s own non-refoulement claim has been properly considered by the Board, this court is satisfied that the Board had achieved standard of fairness in dealing with A2’s claim consistent with the principles laid down in Fabio Arlyn Timogan (supra.).

19.For these reasons, I am not satisfied that the 2^nd Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave to any of the applicants: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Notwithstanding that A2 has not been legally represented in this intended judicial review in compliance with O.80, r.2 of the Rules of the High Court, this court would treat this non-compliance as a mere irregularity : see  Re Jasvir Singh [2021] HKEC 114 [33] applied Fabio Arlyn Timogan (supra.) .

20.The 2^nd Leave Application for each of the applicants is accordingly dismissed.

Withdrawal of Leave Applications

21.On 26 November 2024, A1 filed an affirmation in each of the 1^st Leave Application as well as in the 2^nd Leave Application for herself (and presumably on behalf of A2) to apply to withdraw the 1^st and the 2^nd Leave Applications, stating that she wanted go back home as she had no problem back home.

22.Having regard to the fact that the affirmation A1 filed in the 2^nd Leave Application has not expressly referred to A2, this court therefore directed the holding of a hearing on 24 December 2024 to confirm the applicants’ position. A1 attended the hearing in person. At the hearing, A1 stated under oath that she made the application to withdrawal all her intended judicial reviews for herself and on behalf of A2. She stated that it was safe for both of herself and A2 to return home as her parents had accepted her and A2.

23.Apart from the application to withdraw the 1^st and 2^nd Leave Applications, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicants to withdraw the 1^st and 2^nd Leave Applications, and hereby order the dismissal of the 1^st and 2^nd Leave Applications: see Re Manik Md Mahamudun Nabi [2022] HKCA 471.

Dated the 7^th day of February 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