Erni Widyawati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2600/2019

[2025] HKCFI 4336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2600 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being present in open court;

Order by Deputy High Court Judge K.W. Lung:

1.   Leave for the applicants to apply for Judicial Review of the Board’s 2^nd Decision be granted;

2.   The applicants shall take out an originating summons within 14 days from the date of this Order in accordance with Order 53, rule (5) of the RHC; and

3.   Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd applicant’s application a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant, aged 50, is the mother; the 2^nd applicant, her daughter, is 11 years of age.

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

3.The applicants appeared before the Court on 21 May 2025. She told this Court that her husband and their younger daughter were in the course of processing for their non-refoulement claim as well. The Court adjourned the matter for 3 months to see if the husband’s case can catch up with this application; and if so, both applications will be heard together. But if the husband’s case is still not ready, the Court will deal with this application without further delaying the matter.

4.The case was fixed to be heard on 21 May 2025. However, the applicants were absent at the hearing. I shall therefore deal with their application on the papers.

5.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

6.The applicants are nationals of Indonesia.  The 1^st applicant last arrived in Hong Kong as a domestic helper since 2006, but when her contract expired, she did not depart and overstayed in Hong Kong since 5 April 2014. 

7.The 2^nd applicant was born in Hong Kong on 21 August 2013 but she was only permitted to remain as a visitor until 24 February 2014.  She did not depart and overstayed since 25 February 2014.

8.On 9 May 2014, the applicants surrendered to the Immigration Department and in due course, they jointly lodged a non-refoulement claim.

9.The applicants’ claim was based on the 1^st applicant’s fear of being harmed or killed by a moneylender who lent money to her parents and the villagers who are Muslims because the birth of the 2^nd applicant was out of wedlock.

10.According to the 1st applicant, her parents borrowed money from a moneylender but when her father passed away in mid-2012. The moneylender wanted the outstanding loan repaid by the 1^st applicant.  Furthermore, the 1^st applicant was worried that the villagers would harm them since most villagers were Muslims and she was a single and unmarried woman, her daughter was born out of wedlock and would not be accepted.  See hyperlink https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2019/HCAL002600_2019_files/the_Board's_Decision.pdf.

The Director’s Decisions

11.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”);

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”).

12.By way of Decision dated 30 October 2015 (“the Director’s Decision”), the Director assessed the applicants’ claim on all applicable grounds except BOR 2 risk and dismissed their claim.  In summary, the Director found that their claim was unsubstantiated.

13.By way of the Director’s Further Decision dated 17 February 2017 (“the Director’s Further Decision”), the Director assessed the applicants’ claim on BOR 2 risk and dismissed their claim.  In summary, the Director found that: there was no additional materials or facts particularly regarding BOR 2 risk [3], and the applicants failed to establish a personal and real risk of their absolute and non-derogable rights [6].  Having carefully reviewed the applicants’ claim, it was considered that the applicants failed to establish BOR 2 risk [6].

The Board’s Decisions

14.The applicants appealed the Director’s Decision to the Board.  The Board did not conduct an oral hearing for their appeal because the Board found that it was unnecessary to hold an oral hearing by virtue of the fact that no issues arose that needed clarification [13].

15.Having considered the evidence, the Board in its 1^st Decision found that the applicants’ claims were mere bare assertions in relation to the loan and the fears of the villagers [25, 26].  In any event, the Board found that state protection was available and internal relocation was an obvious alternative for the applicants [33, 38].  In conclusion, the Board held that the applicants’ claim failed under all applicable grounds except BOR 2 risk. It therefore dismissed their appeal and confirmed the Director’s Decision.

16.The applicants also appealed the Director’s Further Decision to the Board.  Again, the Board did not conduct an oral hearing.

17.Having considered the evidence, the Board in its 2^nd Decision found there were no new or additional facts put forward by the applicant in support of any claim under BOR 2.  In conclusion, the Board held that the applicants’ claim failed under BOR 2 risk.  It therefore dismissed their appeal and confirmed the Director’s Further Decision. 

Application for leave to apply for judicial review

18.The applicants filed the Form 86 on 6 September 2019 for leave to apply for judicial review of the Board’s 2^nd Decision. The applicants did not apply for judicial review in respect of the Board’s 1^st Decision. By virtue of section 37V of the Ordinance, the Board’s 1^st Decision is final.

19.In the 1^st applicant’s affirmation in support of her application, the 1st applicant exhibited a typed page that stated that “the Board refused my claim without any oral hearing which meant they did not give me any chance to present my claim in front of them”.  She also stated that the Board ignored the facts about the situation in her country, but did not provide any details or particulars to her bare assertion.

DISCUSSION

20.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).

21.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. On 21 May 2025, the applicants appeared before me. The 1^st applicant submitted that she considered that there was no evidence to prove that she or her daughter would be harmed or killed by the villagers in Indonesia.

22.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 see if there were any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation for the minors, and to have separate consideration of the child specific issues as the minors are more liable to be subjected to the applicable risks than the parent.

23.It is obvious that the Board did not separately consider the 2^nd applicant’s claim. It is a clear case of the Board had committed an error in law under the Court of Appeal’s decision above, and the Board did not even hold a hearing for the applicants.

24.The applicants therefore succeed in showing that there is realistic prospect of success in their proposed judicial review.

DISPOSITION

25.I grant leave to the applicants to apply for judicial review of the Board’s 2^nd Decision. The applicants shall take out an originating summons within 14 days from the date of this Order in accordance with Order 53, rule (5) of the RHC.

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.

DATE

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