Suyono Indah Wati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2272/2019

[2025] HKCFI 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2272 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.The 1^st applicant, aged 44, is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 15.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 15 July 2019 of the Torture Claims Appeal Board (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.The applicants appeared before the Court on 19 February 2025.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

5.The applicants are nationals of Indonesia. The 1^st applicant is the mother of the 2^nd minor applicant. The applicants are nationals of Indonesia. The 1^st applicant last arrived in Hong Kong as a domestic helper on 26 June 2009 but when her contract was prematurely terminated on 18 October 2009, she was arrested by police on the same day. On 22 February 2010, the 1^st applicant was convicted of theft and sentenced to 12 months’ imprisonment. After the 1^st applicant was discharged from prison, she was transferred to the Immigration Department on 23 October 2010.

6.The 2^nd applicant was born in Hong Kong on 14 August 2010.

7.The applicants had previously lodged torture claims, which were refused by the Director on 16 August 2012. Subsequently, the 1^st and 2^nd applicants lodged non-refoulement claims.

8.The 1^st applicant’s claim was based on her fear of being harmed or killed by family members and villagers as the 1^st applicant had given birth to her younger daughter out of wedlock.

9.According to the 1^st applicant, in 2007, she got married an Indian Man in Hong Kong through a Muslim ceremony, which was not recognized by the law in Hong Kong. She had given birth to her elder daughter in 2008. She took her elder daughter to Indonesia. Her parents and relatives raised no objection to her as the Indian boyfriend was with them. In 2009, her Indian boyfriend abandoned her and returned to India where he married another woman. On 14 August 2010, she gave birth to her younger daughter, the 2^nd applicant in this application, whilst she was being detained at Lo Wu Correctional Institution. She told her family in Indonesia about this. They were very angry and objected to her return to Indonesia with her younger daughter because this time, the younger daughter would be without father and they would be the subject of ridicule and discrimination by the villagers. They threatened to kill her and her daughter if they return without the father. Details of her story are set out in paragraph 10 of the Notice of Decision dated 28 January 2019 (the “Director’s Decision”).

The Director’s Decision

10.The Director considered the applicants’ claims (“the applicable grounds”) in relation to the following risks other than torture risk, which had been rejected under her previous claim:

(a) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(c) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.By way of the Director’s Decision, the Director assessed the 1^st and 2^nd applicant’s claims jointly and dismissed their claims. In summary, the Director found that there were no substantial grounds for believing that there would be any real risk of the applicants being harmed by the 1^st applicant’s family members as it was typically a family dispute [14-17]; state protection was available [18-20]; and internal relocation alternatives were available and reasonable [21-22].

The Board’s Decision

12.The applicants appealed the Director’s Decision to the Board. On 8 April 2019, the Board conducted an oral hearing for their appeals.

13.Having considered the evidence, the Board accepted the 1^st applicant’s evidence [41-48]; but found that the only evidence to support that the applicants would be at risk of serious harm from the family was the 1^st applicant’s own oral and written account of past events [54], though in light of those findings, there was a small but real risk that the applicants would suffer mistreatment that would constitute BOR 3 risk and persecution risk if they returned to her home area [55,66]. However, the Board found that it would be reasonable for the 1^st applicant to internally relocate within Indonesia [57-58, 67] and that state protection was available to protect them from domestic violence [59-61]. There were no grounds to believe that the applicants would face BOR 2 risk [70]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds.

14.It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

15.The applicants filed Form 86 on 8 August 2019 for leave to apply for judicial review of the Board’s Decision.

16.In the 1^st applicant’s affirmation in support of her application, the 1^st applicant exhibited the Board’s Decision and only stated that she was not satisfied by the Board’s Decision, but she did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. I asked the 1^st applicant whether there will be any specific issue in relation to her daughter if they return to Indonesia. The 1^st applicant said that she will have financial problem. She hopes that her daughter finishes her study in Hong Kong. Also, her family do not like her.

19.It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

20.The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held that if the Board had attained high standards of fairness and:

“there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

21.The Court of Appeal in Re: Luu Thi Hoa & Others [2024] HKCA 174, Hon Kwan VP and Cheung JA, 27 February 2024 held:

“17. In the present case, the 3^rd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of his claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 3^rd applicant’s claim. Further, the Board had found that no threat was made to kidnap the children.

18. We also agree with the Judge that on the materials available to the Court, they do not disclose any possible concern that there may be non refoulement grounds that relate specifically and solely to the 3^rd applicant. In the circumstances, although the Board did not appear to have separately considered the 3^rd applicant’s claim (other than on the issue of kidnapping), we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”

22.Finally, the Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

23.Those reasons under paragraph 14 are not valid to challenge the Board’s Decision. There is no child specific issue, which had not been considered by the Board because of lack of legal representation.

24.The applicants fail to show that there is realistic prospect of success in their proposed judicial review.

DISPOSITION

25.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.

26.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

The 1^st applicant appeared in person.

The 2^nd applicant was unrepresented and did not appear.