Nia Listiawati Waya and Another v. Torture Claims Appeal Board

HCAL 2685/2019

[2025] HKCFI 2680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2685 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;

Order by Deputy High Court Judge Bruno Chan:

1.   Leave to amend Form 86 to include the 1^st Applicant’s son, Kambay Muhammad Lamin as the 2^nd Applicant be granted;

2.   Extension of time for the application of the 2^nd Applicant for leave to apply for Judicial Review be granted;

3.   Leave for the 2^nd Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 June 2018 be granted;

4.   The 1^st Applicant’s application for leave to apply for Judicial Review be dismissed;

5.   The 1^st Applicant, for the 2^nd Applicant as his mother and next friend, do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

6.   The 1^st Applicant, for the 2^nd Applicant as his mother and next friend, do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party; and

7.   The Official Solicitor shall represent the 2^nd Applicant in the application.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 42-year-old national of Indonesia who last arrived in Hong Kong on 13 December 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 December 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 28 February 2013, she did not depart and instead overstayed, and was arrested by police on 16 April 2013. After she was referred to the Immigration Department for investigation, 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 former husband and/or his creditors for failing to give him money to repay his debts, and after giving birth to a son, the 2^nd Applicant (“A2”) in Hong Kong on 20 November 2015 out of a relationship with a Gambian man, she also raised a non-refoulement claim for A2 on the same bases.  

2.A1 was born and raised in Village Gantar, Sub-district Gantar, District Indramayu, West Java, Indonesia. After leaving school she worked as a domestic helper in Singapore and Malaysia before returning to Indonesia to marry her husband and raised a family with 2 children in her home district.

3.However, after the birth of their second child, her husband started to stay away from home or to provide money for the support of the family, and so in August 2009 A1 placed her children in the care of her parents and came to Hong Kong to work as a foreign domestic helper to support her children.

4.In April or May of 2010 she started to receive telephone calls from her husband demanding for money to repay his debts, and when she refused, he became furious and made death threats against her, whereupon she changed her telephone numbers and stopped all further telephone contact with him.

5.In May 2011 she returned to Indonesia for holiday, during which she was informed by her parents that her husband and his creditors had kept coming to look for her for money to repay her husband’s debts, and so she proposed to pay her husband a lump sum of money in return for a divorce with him, to which her husband agreed and subsequently obtained a divorce to dissolve their marriage in Indonesia after she had returned to Hong Kong to continue with her employment.

6.While back to Hong Kong she met and formed a relationship with a Gambian man, however in 2012 her former husband again called her for money, and when she refused he threatened to kill her when she returned to Indonesia, and so after her last employment was prematurely terminated in February 2013, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection for herself and A2 upon subsequently given birth to him, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 July 2016 jointly for both of them, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 9 September 2016 and a Notice of Further Decision dated 17 August 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”).

8.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 former husband or his creditors 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 them to seriously harm or kill either of them other than to press A1 for money, that in any event it was a private domestic or monetary dispute between A1 and her former husband or his creditors only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 256 million people spread across a vast territory of more than 1.8 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move safely with A2 to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate them.

9.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 7 March 2018 before the Board during which A1 gave evidence for both of them and answered questions raised of their claims by the Adjudicator for the Board. On 20 June 2018 their appeals were dismissed by the Board which also confirmed the Director’s decisions.

10.In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that she was not considered a truthful witness and that she had manufactured her case for non-refoulement protection and rejected the credibility of her claim of fear of harm from her former husband or his creditors that caused her to overstay in Hong Kong to seek protection for herself and A2, that it was not accepted that after all these years since she last saw him in 2009 that her former husband would still have any adverse interest in her or her son that it is not accepted that they would face any real risk of harm from him or his creditors, while relevant COI show that upon returning to Indonesia that A1 as a young mother without male support and A2 as a child without father will be able to have access to relevant governmental departments and NGOs for supports and assistances that it concluded that their claims for non-refoulement protection failed on all applicable grounds.

11.On 13 September 2019 A1 filed a Form 86 naming herself as the only applicant for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her fear of harm from her former husband as before, and at the hearing of her application A1 confirmed that she had unintentionally omitted to include her son in the Form at the time of its issue due to her ignorance of the law and without legal representation, and requested to add her son to the application, to which I agreed and granted leave to her to amend her Form 86 accordingly for her son to be named as the 2^nd Applicant.

12.However, by then they were also 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.

13.As the last day of the three-month period for A1 to file the Form 86 fell on 20 October 2018 after discounting the month of August for court’s vacation, the Applicants were therefore more than 10 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.

14.In the Applicants’ case, a delay of more than 10 months must be considered as very substantial and inordinate, for which they did not provide any explanation or reasons in their Form or affirmation, and at the hearing of their application A1 explained that she was not aware of the procedural requirements for the filing of their application until much later when she was advised by a friend, but by then they were already seriously out of time to do so.

15.The record shows that the decision was sent on the same day of 20 June 2018 to the Applicants’ then reported address without being returned though undelivered post, and as ignorance of the rules on procedural requirements can never be accepted as proper justification for their non-compliance, I am not satisfied that the Applicants have provided any good reason for their such serious delay.

16.As for the merits, if any, of their intended application, as noted above that the Applicants also failed to put forth any proper ground for their intended challenge in their Form, nor was A1 able to do so either for herself or for A2 at the hearing of their application. Nevertheless, given the seriousness of the issue at hand and the gravity of the consequences of the Board’s decision to reject not just the claim of A1 but also A2 who is a minor, of which the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 held that non-refoulement claims made by minors are separate claims from those advanced by their parents that decision-makers should consider each claim by reference to the personal circumstances of the minor claimant, and that even if the claim is based on the same set of primary facts of the parents, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim, and that it does not necessarily follow from the dismissal of the parents’ claims that the children’s claims could be dismissed without further and separate 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.

17.In the present case of A1, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 43 of its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by her, I do not find any merits in her intended application as regard her own claim, and accordingly I refuse to extend time and dismiss her application.

18.However, the same may not be said about the Board’s determination of the claim of A2 who is still a minor at his present age of 9 years old and was without legal representation in his appeal to the Board, nor for that matter in the present application before the Court as required by Order 80 rule 2 of the Rules of the High Court, accordingly high standards of fairness require that the Board’s decision be scrutinized and examined by the Court to see whether A2’s claim had been properly considered and determined by the Board for any underlying matter which may support potential non-refoulement bases specific to his circumstances but had not been properly advanced to the Board due to lack of legal representation in his appeal before the Board.

19.While it appears in its decision that the Board did refer to relevant COI to consider any risk that A2 may face as a small child without father upon returning with his mother to Indonesia, but having properly identified A2 as being born in Hong Kong to a Gambian father, it seems that the Board just accepted the words of A1 that A2 is also a citizen of Indonesia (see [26] of Decision) without making its own enquiry and consideration whether that is indeed the true legal position according to the laws of Indonesia, which would of course also be relevant to the consideration of whether A2 would be able to enter the country with his mother as such or thereafter be entitled to seek such supports and assistances from government departments and NGOs as determined by the Board, or for that matter whether he may not just be a child without father as noted by the Board but may also be an illegitimate child born out of wedlock when it also appears that the Board just accepted A1’s words of having gone through some religious marriage with A2’s Gambian father in Hong Kong without any further details or proof thereof, or whether such proof would be accepted by the Indonesian authorities as a valid marriage.

20.I am of course mindful of the fact that no such issues of possible statelessness or illegitimacy had been raised for A2 to the Board or to this Court, but given high standards of fairness required in such proceedings to see if there are underlying matters that may support potential minor-specific non-refoulement bases which might not have been advanced to the Board due to lack of legal representation for A2 as a minor, it seems to me reasonably arguable that such issues of whether A2 is indeed an Indonesian national by virtue of his mother’s nationality, or whether he would be accepted as such and as a refoulee by the Indonesian authorities, or that such matters of his nationality and legitimacy as a child born in or out of wedlock between his Indonesian mother and Gambian father would have any bearing on his non-refoulement claim, had in fact not been properly or sufficiently considered by the Board when it came to the conclusion that A2 would be entitled to seek supports and assistances from relevant governmental departments and NGOs upon his return to Indonesia: see Novi Azizah & Others v Torture Claims Appeal Board [2021] HKCA 1910; Dian Lestari & Anor v Torture Claims Appeal Board [2025] HKCA 39.

21.For these reasons I am of the view that A2’s intended application for judicial review of the Board’s decision is reasonably arguable based on the grounds that the Board (1) failed to make proper enquiry as to his or to take it into proper or sufficient consideration in its determination of his non-refoulement claim; and/or (2) failed to consider other underlying matters such as his legitimacy that may support potential non-refoulement bases specific to his personal situations as a child born to an Indonesian mother and a Gambian father outside Indonesia, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

22.In the premises, I extend time to the application for A2 only, and grant leave to A1 as his mother and next friend to apply for him for judicial review of the Board’s decision on the grounds stated above, and direct that A1 shall file and issue the originating summons for A2 within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party, and accordingly that the Official Solicitor shall represent A2 in the application.

Dated the 3^rd day of July 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