ISLAM FATIMA BIN by her mother and guardian WASNITI RISAM ROHMAT v. TORTURE CLAIMS APPEAL BOARD

HCAL 341/2024

[2024] HKCFI 3645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 341 OF 2024

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 the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 2-years-old national of Indonesia born in Hong Kong to her Indonesian mother who was a non-refoulement claimant under HCAL 169/2023 and while released on recognizance pending the determination of her claim gave birth to the Applicant on 18 October 2022 out of her relationship with a Bangladesh man, and that she subsequently also raised a non-refoulement claim for the Applicant on the basis that if the Applicant is refouled to Indonesia she would be harmed or killed by her mother’s husband over her extra-marital affair with the Bangladesh man in Hong Kong. The Applicant was subsequently also released on recognizance into her mother’s care pending the determination of her claim.

2.  The Applicant’s mother (“Mother”) was born and raised in Indramayu, Jakarta-Barat, Indonesia who after leaving school married her husband who was a local farmer, and raised a family with a son in her home district.

3.  In 2019 the Applicant’s mother came to Hong Kong to work as a foreign domestic helper but overstayed after her employment was terminated, and then raised her non-refoulement claim based on her fear of being harmed or killed by the creditor of her husband over her husband’s debts, but which claim was subsequently rejected by both the Director of Immigration (“Director”) and the Torture Claims Appeal Board (“Board”) essentially on the bases that her claimed risk even if real arose from some private monetary dispute between her husband and his creditor only without any official involvement that state protection would be available to her upon her return to Indonesia as well as internal relocation for her to move safely to other parts of the country away from her home district without any risk of being located that her claim failed on all the applicable grounds.

4.  As noted above that subsequently upon giving birth to the Applicant in 2022 in Hong Kong out of her relationship with the Bangladesh man, her mother also raised a non-refoulement claim for the Applicant but based on a different ground, namely that her mother’s husband in Indonesia after having discovered her affair in Hong Kong with the Bangladesh man and the subsequent birth of the Applicant, her mother’s husband became furious and threatened to kill the Applicant if she returned with her mother to Indonesia, and for which her mother also completed a separate Non-refoulement Claim Form (“NCF”) on 24 March 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 15 May 2023 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim as well as her mother’s situation and assessed the level of risk of harm from her mother’s husband upon her return with her mother to Indonesia as low due to the absence of any past ill-treatment from her mother’s husband, that there is no evidence of any intention of her mother’s husband to seriously harm or kill her other than some hearsays from her mother’s parents and her mother’s own speculations, that it is not accepted that her mother’s husband would have any adverse interest in the Applicant at all, that in any event it was a private relationship dispute between her mother and her mother’s husband only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in Indonesia to protect single-mother and illegitimate children as well as supports and assistances from governmental departments and NGOs, while reasonable internal relocation alternatives are also available within Indonesia with a large population of 277 million people spread across a vast territory of more than 1.8 million square kilometers that it would not be unduly harsh for the Applicant to move with her mother as an able-bodied adult with working experience to move to other areas of the country away from her mother’s home district in large cities where it would be difficult if not impossible for her mother’s husband to locate her.

7.  On 23 May 2023 the Applicant’s mother lodged an appeal for the Applicant to the Board against the Director’s decision, and for which her mother attended an oral hearing on 7 November 2023 together with the Applicant’s lawyer from DLS before the Board during which her mother gave evidence for the Applicant and answered questions raised of her claim by the same Adjudicator as before and with submissions made on her behalf by her lawyer. On 1 February 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no evidence to suggest that the husband of the Applicant’s mother to have any intention to or taking any steps to harm or kill the Applicant or for that matter her mother, nor is there any evidence of any past ill-treatment or actual harm inflicted by him on her mother let alone on the Applicant whom he has never met or even knew of her existence that it is not accepted that the Applicant will face any real risk of such threats or harm from him upon her refoulement to Indonesia, while relevant COI show that the Applicant being a mixed race child born in Hong Kong by her Indonesian mother and her Bangladeshi father will be accepted as a citizen of Indonesia under her mother’s nationality according to the Indonesian law and would be entitled to all the protection and benefits as such including education and residency and with no credible risk of discrimination or persecution as such upon her refoulement with her mother to Indonesia that it concluded that her claim for non-refoulement protection also failed on all applicable grounds.

9.  On 19 February 2024 the Applicant’s mother filed a Form 86 on her behalf for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form or in her supporting affirmation of the same date in which her mother just repeated her claim as before but without putting forth any proper ground for the Applicant’s intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicant’s mother on her behalf, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision.

10.  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.

11.  In the Applicant’s case, I am of course mindful of the fact that she is a minor at only 2 years old and without legal representation in her present application as required by Order 80 rule 2 of the Rules of the High Court, it is however clear from the decision ([17]) that the Board did in its assessment and determination of the Applicant’s claim specifically apply the legal principles laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, CACV 32/2020, 27 November 2020 for non-refoulement claims by minors as separate claims from those advanced by their parents by reference to the personal circumstances specific to each child, which the Board did exactly for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her mother in her oral evidence and her answers to questions raised of the Applicant’s claim as well as submissions by her lawyer from DLS, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board, nor of any underlying matter that may support any potential minor-specific non-refoulement bases in the Applicant’s case and circumstances which might not have been advanced by her mother or her lawyer in her appeal to the Board.

12.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate with her mother to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  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 Applicant’s claim, and given the lack of merits in her intended application, I shall treat A2’s lack of legal representation required under Order 80 rule 2 of the RHC in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh & Others [2021] HKCA 53.

14.  It is also of note that the Applicant’s mother recently on 8 October 2024 filed an affirmation requesting to withdraw the application of the Applicant, and subsequently also failed to attend the scheduled hearing for the application, but without providing any details or reasons for the withdrawal.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her application.

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