Daini and Another v. Torture Claims Appeal Board

HCAL 148/2019

[2025] HKCFI 636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 148 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, Dost Zeeshan as the 2^nd Applicant be granted;

2.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 14 November 2017 be refused; and

3.  The Applicants’ application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 40-year-old national of Indonesia who last arrived in Hong Kong on 7 July 2011 with permission to continue to work as a foreign domestic helper until the 5 July 2013 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 December 2012 when she was arrested by police for theft, for which she was subsequently convicted and sentenced to prison for 6 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, 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 family for bringing shame to them for allegedly forming a lesbian relationship with another Indonesian woman in Hong Kong.

2.While being released on recognizance pending the determination of her claim, A1 ended her lesbian relationship and started dating a Pakistani man in Hong Kong in 2013, and with whom she subsequently became pregnant with their child, and upon giving birth to a son, the 2^nd Applicant (“A2”) on 6 February 2016, she also raised a non-refoulement claim for him on the basis of fear of being harmed by her family for having married a man from a different culture and country without her family’s permission, and as a result also from societal discrimination upon their return to Indonesia.

3.A1 was born and raised in Village Kapuran-Pasar-Madang, Sub-district Kota Agung, District Tanggamus-Lampung Selatan, Province Lampung, Indonesia where she dated a boyfriend and worked as a domestic servant in West Java before moving to Singapore in 2001 to work as a domestic helper until 2005 when she first came to Hong Kong to work as a foreign domestic helper.

4.In early 2007 she was heartbroken to find out that her boyfriend had another girlfriend whom he had subsequently married, whereupon she started to hate and distrust men and became interested in going out with girls, and gradually became involved in a lesbian relationship with another Indonesian female domestic helper in Hong Kong, of which her family in Indonesia became furious and demanded her to put an end to such relationship but which A1 just ignored.

5.In 2009 when she returned home for holiday, her family was still angry with her same sex orientation, with her father and elder brother being particularly hostile towards her by scolding and even beating her that she suffered cuts and bruises all over her body, and on one occasion her elder brother even threatened to kill her with a knife that A1 subsequently fled from her home village to Tanjung Karang City to take shelter in a friend’s place before returning to Hong Kong to continue with her employment.

6.In 2012 her lesbian relationship ended when her Indonesian girlfriend left her for another woman, and in December 2012 she lost her employment after she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 6 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, as she was afraid to return to Indonesia due to the threats from her family, she then raised her non-refoulement claim for protection.

7.Whilst released on recognizance pending the determination of her claim, A1 in 2013 formed a relationship with a Pakistani man and subsequently gave birth to their son, A2 on 6 February 2016, whereupon she then registered her marriage with the Pakistani man in Hong Kong on 20 February 2016, of which she also fears that her family would not approve and would harm her and A2, and so she also included such risk in her own claim and raised a non-refoulement claim for protection for A2 on the same bases, and for which she completed a Non-refoulement Claim Form (“NCF”) on 16 June 2016 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 27 July 2016 and a Notice of Further Decision dated 5 May 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”).

9.In his decisions the Director took into account of all the relevant circumstances of the claims of both A1 and A2 and assessed the level of risk of harm from A1’s family upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her family to seriously harm or kill either of them, that in any event these were private personal disputes between A1 and her family 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 against sexual discriminations and to guarantee freedom of religions and of sexual orientations including LGBT groups as well as to ensure cultural and racial differences amongst Indonesian citizens and with supports and assistances from various governmental departments and NGOs available to both A1 and A2 upon their return to Indonesia, while there are also reasonable internal relocation alternatives available in Indonesia with a large population 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 where it would be difficult if not impossible A1’s family for to locate them.

10.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which they attended an oral hearing on 9 June 2017 before the Board during which A1 gave evidence for herself and A2 and answered questions raised of their claims by the Adjudicator for the Board, during which A1 confirmed to the Board that she no longer relies on the claim based on her previous sexual orientation as a lesbian, and that she only fears risk of harm from her family and societal discrimination to her and A2 in Indonesia arising from her cross-cultural marriage to a Pakistani man in Hong Kong. On 14 November 2017 their appeal was dismissed by the Board which also confirmed the Director’s decisions.

11.In its decision the Board found A1’s claimed fear of risks of harm from her family and the societal discrimination to her and A2 due to her cross-cultural marriage to a Pakistani man are based on nothing more than her speculation, that she has for years made no effort to contact her family to ascertain their view about her marriage to a man from Pakistan and now has had their child, that according to relevant COI including Law No. 62 of 1958 of the Law on the Citizenship of the Republic of Indonesia that A2 would be accepted by law and entitled to Indonesian citizenship and hence to all the rights protections and entitlements including education upon her return to Indonesia, as well as supports and assistances from government-run integrated service centres for women and children (P2TRA) all over the country and other NGOs if resorted to, and that if A1 chose not to return to her home district, reasonable internal relocation alternatives are also available for her to move safely with A2 to other parts of the country without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

12.On 16 January 2019 A1 filed a Form 86 for herself only for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the TCAB and the Director’s decision which focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant COI;

(3)  Procedural impropriety/irrationality in failing to reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

(4)  Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicants personally or threats to kill them;

(5)  Procedural impropriety in failing to conduct oral hearing for their appeal/petition that without oral hearing their appeal had been dismissed that it was not fair to determine their claims;

(6)  That there was no sufficient basis to conclude that the Applicants would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

13.At the hearing of her application A1 confirmed that she had intended to include A2 in the leave application but being unrepresented she accidentally omitted to include him as the second applicant, and requested that she be allowed to do so for A2, to which the Court acceded and granted leave for her to amend the Form 86 to include A2 as the second applicant accordingly, and for whom A1 also confirmed that the above proposed grounds also apply to the case of A2, and that there are no further grounds to be added for either of them.

14.However, by then the Applicants were 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.

15.As the last day of the three-month period for them to file their Form 86 to challenge the Board’s decision fell on 14 February 2018, , the Applicants were therefore some 11 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.

16.In the Applicants’ case, a delay of 11 months must be considered as very substantial and inordinate, for which A1 explained at the hearing that she had at the material time moved their residential address and hence did not receive the decision in the mail, and that she had waited for a long time for her former landlord to bring her the decision sent to her previous address, but she was unable to provide any further details or particulars such as what was her previous address, when did she move to another address, or when did she receive the decision from her former landlord, although she did concede that she never informed the Immigration Department or the Board of her alleged change of address.

17.The record shows that the decision was sent by the Board to the Applicants at their then reported address without being returned through undelivered post, and in the absence of any necessary or relevant details or particulars or documentary evidence to corroborate A1’s bare assertions, and given her own concession of failing to properly inform and update the relevant authorities of her new address if indeed she did change her address as alleged, I am not satisfied that the Applicants have any good or valid reason or justification for their serious delay,

18.As for the merits, if any, of their intended application, those grounds put forward by A1 for both them are all just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant 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 did the Board fail to conduct sufficient inquiry into the relevant COI or to give reasons for its assessment of their claimed risks or to take account of any relevant factors, while the complaint of no oral hearing being conducted for their claim is clearly factually incorrect when both Applicants did attend an oral hearing on 9 June 2017 during which A1 gave evidence for their claims and also answer questions raised of their claims by the Adjudicator with the assistance of an interpreter. 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 nor any merits in their intended application either.

19.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.

20.In the Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

21.Furthermore, 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 claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate 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.

22.In the premises, and 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 Applicants’ claims.

23.I am of course mindful of the fact that A2 being a minor at the present age of 8 years old is not legally represented as required by Order 80 rule 2 of the Rules of the High Court, nor was he in his appeal before the Board, and hence it would be necessary for the Court to scrutinize and examine whether his claim had been properly and separately considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are 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 in his appeal before the Board, as has been held to be the proper approach by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minors children even if based on the same set of primary facts are separate from the claims of 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.

24.In the present case and as noted above, A2’s claim was essentially premised on his mother A1’s claim, and that the Board having considered the evidence of A1 disbelieved her and rejected her claim, and hence there was accordingly no factual basis which could support A2’s claim on any of the applicable grounds under torture risk, BOR 2 and BOR 3 risk, and the Board did further and separately consider those personal and minor-specific circumstances of A2 as a child born from a cross-cultural marriage with a Pakistani father outside Indonesia by referring to and assessing the relevant COI to correctly conclude that there was also no proper basis to support his claim under persecution risk upon his return to Indonesia with his mother. As such, I am satisfied that there was nothing to indicate that the merits of A2’s claim had not been adequately explored and considered by the Board notwithstanding the lack of legal representation for him such that high standards of fairness had not been met: see Re Jasvir Singh [2021] HKCA 53; and Re Palingayen Rosalyn Ringor [2021] HKCA 84), and there being no reasonably arguable basis to challenge such findings of the Board and hence no merits in his intended application, I shall treat the lack of legal representation for A2 in his present proceedings before the Court as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh supra.

25.For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 20^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