Dwi Purwanti and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2917/2019

[2025] HKCFI 2617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2917 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The 1^st applicant, aged 45, is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 2 and the 3^rd applicant, her daughter, aged 1.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 20 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.The applicants requested a hearing. However, they were absent at the hearing on 21 May 2025. I shall therefore deal with their application on the papers.

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 first came to Hong Kong as a domestic helper in 2001. Her employment contract was terminated in June 2001. She did not depart and overstayed since 15 July 2018. On 25 August 2011, she was arrested for overstaying. A removal order was issued against her on 16 September 2011. She raised a torture claim on 21 September 2011 and her application was rejected on 2 January 2013. She lodged her non-refoulement by written representation dated 11 March 2016. She applied to join her daughters in her action by letter dated 8 July 2016, which the Director of Immigration (“the Director”) agreed.

6.The claims of the applicant and her daughters are based upon the 1^st applicant’s fear that if they returned to Indonesia, they will be ill-treated or harmed by (i) Agus, an Indonesian man who has been pressing the 1^st applicant to marry him and the 1^st applicant refused; and (ii) Wiji, the 1^st applicant’s sister and her mother because they disapproved the 1^st applicant’s marriage to a Pakistani man in Hong Kong and gave birth to her daughters.

7.The 1^st applicant had applied to withdraw her claim in July 2016 because she intended to go to Pakistan with her husband. However, her husband was deported to Pakistan and she remained in Hong Kong. She considered that her problems in Indonesia remained, therefore she applied to the Director to re-open her claim. The Director did not reject her request and proceeded to assessment her claim together with her daughters’ claim. Since her torture claim application had been rejected, the Director considered all the applicable risks other than torture risk. The Director considered the daughters’ claim on all the applicable risks, including the torture risk.

8.According to the 1^st applicant, since 1999, Agus has been proposing to marry her. She was not happy with his bad character and refused him. In December 2005, upon being rejected by the 1^st applicant, Agus slapped her face several times. He warned her and her family not to report the case to police. In 2007, Agus wielded a folder knife to threaten her. Since then, she decided to leave Indonesia. She then went to Hong Kong to work as a domestic helper. She met her husband in Hong Kong and married him. Wiji and her mother threatened that they would kill her and her children if they returned to Indonesia. Details of her story are set out in paragraph 10 of the Director’s Notice of Decision dated 14 February 2019 (the “Director’s Decision”).

The Director’s Decision

9.The Director considered the applicants’ claims in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”) (except for the 1^st applicant);

b. 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”);

c. 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

d. 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”);

10.By way of the Director’s Decision, the Director assessed their claims jointly and dismissed their claims. In elaboration, the Director found that: (i) the absence/low intensity of ill-treatment and frequency from Agus, Wiji and her mother in the past is an indication that her perceived fear of harm on her and her children is low [20]; (ii) state protection will be available upon their return to Indonesia [21]-28]; and (iii) internal relocation is viable [29]-[32].

The Board’s Decision

11.The applicants appealed the Director’s Decision to the Board. On 23 July 2019, the Board conducted an oral hearing for their appeals.

12.Having considered the evidence, the Board found as follows:

(1) the 1^st applicant had not produced any evidence to show that her daughters will be at risk of torture if they return to Indonesia [90];

(2) state protection will be available to the applicants [137];

(3) internal relocation is a viable option for the applicants [153]-[154];

(4) there is no evidence that the applicants will be subjected to BOR 2 risk [161];

(5) there is no evidence that the applicants will be subjected to BOR 3 risk [164];

(6) the applicants’ fear of Persecution risk is not well-founded [166]; and

(7) the 2^nd and the 3^rd applicants have not substantiated a case on any of the grounds under USM;

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

Application for leave to apply for judicial review

14.The applicants filed Form 86 on 3 October 2019 for leave to apply for judicial review of the Board’s Decision.

15.In her affirmation in support of her application, the 1^st applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.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.

19.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.”

20.It seems that the Board had considered the 2^nd applicant’s claim separately as shown by the Board’s reasons above, and, in particular, 8(1) and 8(7). There is nothing before this Court that there is any possible concern that there may be non-refoulement grounds that relate specifically and solely to the 2^nd and the 3^rd applicants.

21.The 1^st applicant had not raised any specific child issues to the immigration officer or to the Board, not even at this stage to this Court by way of affirmation evidence. 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 1st applicant has not identified any other risks of harm that the 2nd 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.”

22.The applicants had elected not to appear before this Court at the hearing. They had given no chance for this Court to verify with the 1^st applicant in respect of any child specific issues, which should have been submitted to the Board, but they were not done because of lack of legal representation. They therefore fail to show that there is realistic prospect of success in their proposed judicial review.

DISPOSITION

23.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.

24.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 and the 3^rd applicant’s application a nullity.

The applicants were unrepresented and did not appear.