RESTU DWI AMBARWULAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 492/2024

[2024] HKCFI 2285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 492 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  The Applicants are Indonesian nationals. The 1^st Applicant is the mother of the 2^nd Applicant. Previously, they had made separate non-refoulement claims (the “previous claims”) with the Director of Immigration (the “Director”) between 2014 and 2018. Their claims were refused and their appeals against the Director’s decisions to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) were dismissed. The 1^st Applicant’s application for leave to apply for judicial review of the Board’s decision was refused by the Court of First Instance[1]. Her appeal against the court’s decision was dismissed by the Court of Appeal[2], which also refused her application for leave to appeal to the Court of Final Appeal[3].

2.  In September 2020, the Applicants obtained permission from the Director to file another claim jointly (the “subsequent claim”). In due course, their subsequent claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[4]. BOR 2 Risk[5], BOR 3 Risk[6] and Persecution Risk[7] grounds. Their claim was dismissed by the Director’s Notice of Decision dated 5 January 2021 (the “Notice”). Their appeal against the Director’s decision in the Notice was dismissed by the Board’s Decision dated 11 March 2024 (the “Decision”). On 19 March 2024, they apply by Form 86 for leave to apply for judicial review (the “leave application”) of the Board’s Decision.

3.  The 1^st Applicant is divorced and has a daughter with her ex-husband (“Gaguk”) in Indonesia before she came to work as a foreign domestic helper in Hong Kong on 17 September 2012. She became an over-stayer since 22 February 2013 after her employment contract was prematurely terminated. She was arrested by the police on 4 September 2013 and released on recognizance on 21 October 2013. She developed a relationship with a Togolese non-refoulement claimant and gave birth to the 2^nd Applicant on 6 November 2017.

4.  At the hearing on 13 August 2024, this Court advised the Applicants that as the 2^nd Applicant is a minor, the 1^st Applicant who acted on her behalf should seek legal representation so that the 2^nd Applicant’s interest could be properly taken care of. The 1^st Applicant replied that she had applied for legal aid for herself and for the 2^nd Applicant and their applications were refused but their legal aid appeal would be heard on 21 August 2024. She said she did not intend to seek legal representation should her appeal be dismissed. In the interest of the 2^nd Applicant and for her benefit, this Court adjourned the hearing to 27 August 2024, pending the outcome of their legal aid appeal.

5.  At the hearing on 27 August 2024, the 1^st Applicant confirmed that the Applicants’ legal aid appeal had been dismissed, she had no funds to engage legal representation and would act in person for herself and the 2^nd Applicant. Having read the papers and considered the issues raised by the leave application and having regard to the Applicants’ intention, the Court considered the absence of legal representation a mere irregularity and that the leave application may be justly determined without the Applicants being legally represented.

The 1^st Applicants’ case under the previous claim

6.  In gist, under their previous claims, the 1^st Applicant asserted that if returned to Indonesia, she would be at risk of the proscribed harm from Gaguk who had previously subjected her to domestic violence; and from a loan shark and a bank for her inability to repay the loans which she and Gaguk had obtained from them.

7.  The 1^st Applicant is now 35 years old. She had nine years of education and three years’ working experience as a domestic helper and shop assistant in Indonesia and as a foreign domestic helper in Hong Kong. She married Gaguk in 2002 and gave birth to their eldest daughter later that year. She alleged that Gaguk regularly subjected her to domestic violence by slapping her face which caused minor injuries which did not require medical attention. She did not report the violence out of embarrassment and her belief that the authorities would not intervene on her behalf.

8.  In 2011, the 1^st Applicant and Gaguk jointly borrowed 50 million Indonesian rupiah (“IDR”) from a loan shark with Gaguk providing his house certificate as security. Gaguk also borrowed another 15 million IDR from the BRI Bank using a motorbike as security.

9.  The 1^st Applicant and Gaguk defaulted repayment after the business of their grocery store failed in early 2012. The loan shark initially threatened to beat them and later even to kill both of them, if they did not repay the outstanding loan. A debt collector acting on behalf of BRI Bank (the “debt collector”) also made numerous demands for repayment, but he never physically harmed the 1^st Applicant or Gaguk.

10.  In September 2012, the 1^st Applicant left Indonesia to work in Hong Kong in order to earn money to repay the loans. In mid-2013, Gaguk informed her by SMS that he would hold her solely liable for repayment of the loans and disappeared with their eldest daughter. Then, the 1^st Applicant filed for divorce against him.

11.  The 1^st Applicant claimed she was afraid that the loan shark would kill her, if she returned to Indonesia. She claimed she was afraid to face Gaguk again whom she asserted “must be angry” for her divorcing him and failing to repay the loans. She claimed that state protection was not available because she was not sure whether the police in Indonesia would protect her as she had no money to bribe them.

The 2^nd Applicants’ case under the previous claim

12.  The 2^nd Applicant was born outside of wedlock. Her mother, ie the 1^st Applicant, has never remarried since her divorce from Gaguk. Her natural father had deserted her and the 1^st Applicant. His name did not appear on her birth certificate. Her previous claim was based exclusively on the same facts the 1^st Applicant had asserted in her own previous claim and non-availability of state protection.

13.  The 1^st Applicant said she was not aware of the “special crisis rooms” and “women’s desks” operated by the Indonesian police nationwide and whether they could be helpful to the Applicants in the event of their refoulement. She accepted that they could relocate within Indonesia to avoid the risk of harm but she need money to do so.

The Applicants’ case under the subsequent claim

14.  The Applicants alleged there had been a significant change in their circumstances since the determination of their previous claims. In brief, the 1^st Applicant claimed they would each be at risk of death or serious harm in Indonesia from members of the Muslim community in her home village, including Gaguk and the Iman of the local mosque whom she claimed had threatened to kill them because the Applicants are Muslim and the 2^nd Applicant was born outside of wedlock, and from the Muslim population of Indonesia at large for the same reason. In addition, the Applicants will be at risk of discrimination by the Muslim community because of the 1^st Applicant’s extra-marital relationship and the 2^nd Applicant’s illegitimacy.

15.  The Applicants’ case is founded on a letter from the 1^st Applicant’s father. In that letter, her father informed her that it would be unsafe for her to return to Indonesia, as all her relatives and the people in the community knew she had given birth to the 2^nd Applicant outside of wedlock and the 2^nd Applicant’s birth certificate does not bear the name of her father. He warned her that the Muslim community would find her situation unacceptable, as she had brought disgrace to the family and the community and ruined their reputation. He also said that Gaguk was angry and had been to his home threatening to harm the Applicants if they returned to Indonesia.

16.  At the screening interview, the 1^st Applicant submitted an article titled Protection to Illegitimate Children (A Case Study at the Indonesian Child Protection Commissions) by Bernadeti Resti Nurhayati of the Faculty of Law and Communication of the Soegijapranata Catholic University of Indonesia to support her claim of discrimination arising from illegitimacy. The Applicants’ legal representative also submitted an academic article titled Recognition of illegitimate children in various laws of Indonesia purportedly written by a legal scholar of the Faculty of Law of the Diponegore University which asserts, inter alia, that differences in the inherent status and rights between legitimate and illegitimate children in Indonesia and legal ambiguities in the regulations governing the recognition of children’s legitimacy in various Indonesian laws and court decisions gave rise to discrimination, legal injustice and uncertainties in the implementation of children recognition in Indonesia. He submitted that the Indonesian government will not recognize and protect the child and provide welfare support or education to him if the mother does not have a valid marriage certificate.

The finding of the Board

17.  The 1^st Applicant testified before the Board. She confirmed her evidence as stated in her non-refoulement claim form and record of the screening interview. She admitted she had no updates about the loan shark who last threatened her with SMS messages in 2013 or about the debt collector whom she had not seen since 2012. She said she no longer feared they would harm her or the 2^nd Applicant, as the loan shark and BRI Bank had probably realized the security and written off the outstanding balance of the loans. She believed what her father said in the letter was true. She emphasized the specific risks that the 2^nd Applicant might be ostracized, bullied and even attacked by members of the Muslim community in her home village, discriminated against by her neighbours and the broader Muslim community in Indonesia. She feared that the 2^nd Applicant might be kidnapped.

18.  The Board had concerns about the credibility and/or reliability of a number of the 1^st Applicant’s assertions. It found significant parts of the Applicants’ subsequent claim are based exclusively on hearsay in the 1^st Applicant’s father’s letter which provided no significant detail about the context and specifics of the alleged threats from Gaguk and others but which she accepted entirely without any further discussion with her father. While noting the difficulties which a non-refoulement claimant might have in obtaining supporting evidence, the Board was unable to place full weight on the hearsay evidence. It also found her alleged fears that the 2^nd Applicant might be at risk of being kidnapped by unidentified Muslims is a speculation unsupported by any objective evidence. It placed no weight on this part of her evidence.

19.  While accepting that unmarried mothers and their illegitimate children in Indonesia have to contend with varying degrees of stigmatization and discrimination, particularly in rural area, the Board would not go so far as to conclude that the 1^st Applicant genuinely holds all of the fears she asserted. Even accepting her evidence at its highest, it found her fear of harm from members of the Muslim community in her home village or in the wider Muslim community a likely exaggeration on her part designed to bolster their claim for protection, ie their claim is not proven. In the alternative, it found even if her fear is genuine, it is not reasonable and well-founded when assessed objectively in the light of the totality of the evidence.

20.  The Board accepted there is objective country of origin information (“COI”) about police failures and corruption in Indonesia. However, the COI also shows there are ongoing steps taken to combat corruption and to improve the effectiveness of the Indonesia police and other state authorities.

21.  While accepting domestic abuse and other forms of violence against women and children is a problem in Indonesia, the Board found there are COI showing the Indonesian authorities’ efforts in addressing the problem. The National Commission of Violence against Women have made concerted efforts to prevent all forms of such violence. The Indonesian Child Protection Commission (the “KPAI”) performs tasks relating to child protection. The National Commission for Protection of Children (the “KNPA”), which is a non-profit organization, promotes advocacy, development and protection of children’s rights and their general welfare. It steps in where children are in need of protection and are being endangered. The police operates “women’s desks” to provide assistance to victims of sexual violence. The Women-Headed Households Empowerment Program provides assistance to women with children who do not have male support. The COI shows the 1^st Applicant would be able to access services provided by organisations such as PEKKA (an Indonesian civil society organization that supports women heads of household), United Nations International Children's Emergency Fund (“UNICEF”) and Women’s Legal Aid (Yayasan Lembaga Bantuan Hukum – APIK (“APIK”). These organisations have assisted thousands of children to obtain birth certificates and mothers to build independence and skills to increase their income and ability to support their children in obtaining secondary and tertiary education. The Board found no evidence that the KPAI or any state or non-governmental agencies in Indonesia that deal with child protection issues, would not help a single mother of an illegitimate child as the 1^st Applicant alleged.

22.  According to the COI, there are more than six million unmarried mothers in Indonesia and any stigma and/or discrimination they and their illegitimate children may face is likely to be substantially lower in the cities than in rural areas and in either case is unlikely to put them at risk of real harm. Despite the problem is a longstanding one and despite imperfections in the laws and legal machinery in enforcing the law, the Board found on balance that Indonesia has a functioning system and machinery for protection of its citizens and prosecution and punishment of offenders. It was satisfied that reasonable state protection would be available and internal relocation feasible to the Applicants. It therefore found there was no real risk that the Applicants would be harmed by Gaguk or other members of the local Muslim community in the 1^st Applicant’s home village or the Muslim community at large.

23.  For all these reasons, the Board found the Applicants’ claim fails on all applicable grounds under the USM and dismissed their appeal.

Legal principles applicable to judicial review

24.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

Grounds for judicial review

25.  After the above legal principles had been explained to the Applicants, the 1^st Applicant said she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. However, in her supporting affirmation filed together with her Form 86, she advanced seven specific grounds of application. In her letter to the Court dated 3 April 2024, she repeated some of those grounds and advanced an additional ground targeting the Board’s decision in respect of her BOR 3 claim (the eighth ground). She said she drafted those grounds and understood them. However, the particulars of each ground are very familiar to the Court as it has seen similar or even identical grounds in other applications. These particulars appear like a template grounds and submissions made without regard to the actual facts of the case. These grounds are considered below.

Ground (1) - Procedural impropriety: Failure to conduct sufficient due diligence

26.  The particulars of this ground are as follows:

“Failure to properly apply para 2 of the UN Committee against Torture General Comment No 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the [Board] and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement.”

27.  Despite her assurance that the grounds were drafted by her, the Applicant demonstrated complete ignorance of the grounds. She could not give particulars of the reforms and means of relief mentioned. In answer to the Board’s request for particulars, she could only repeat the gist of her case, that the 2^nd Applicant was born outside of wedlock and will be at risk of discrimination and that she could not work to pay for their livelihood etc.

28.  This ground appears to be directed at the Board’s finding on the basis of the COI. Reading the Decision and the Notice, the Court is satisfied that the relevant COI had been presented by the Director and considered by the Board along with those presented by the 1^st Applicant and their legal representative. The Court is satisfied that the Board had considered them carefully before making its finding: see Ground (2) below. The weight to be given to the different COI and the Board’s finding are findings of fact which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality. This Court could find no such vitiating elements in the Board’s findings.

Ground (2) - Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI

29.  The particulars of this ground are as follows:

“[The Board’s] Failure to consider that I would face serious risk from my enemies who will harm me because of my political and statistical view which consider a serious matter for which he would definitely harm me upon refoulement. The [Board] completely failed to materialise my fear in my claims.”

30.  The 1^st Applicant gave no particulars not even in broad terms of the type of COI which she alleged the Board should have conducted enquiries into or in specific terms the COI which she alleged the Board had failed to conduct enquiries into or had made insufficient enquiries. The Board had specifically quoted and referred to the COI submitted by her and her legal representative. It had weighed and considered those COI before reaching its conclusion as to the level of risk which the Applicants will likely face on their return to Indonesia. It gave detailed reasons for its assessment of the Applicants’ risks in paragraphs 101 to 148 of the Decision as summarised in paragraphs 18 to 24 above.

31.  The Board’s primary finding is that the 1^st Applicant’s evidence is not entirely credible or reliable because it was based substantially on hearsay evidence with no significant detail about the context and specifics of the alleged threats or was based on speculation. It was prepared to attach some credence to her evidence, but “would not go so far as to conclude that she genuinely holds all of the fears she expressed about them”[8]. Then the Board went further and found even accepting her evidence at its highest, her assertion about her fears is “likely an exaggeration on her part designed to bolster their non-refoulement claims.” In other words, the Board’s primary finding is that the Applicants’ case was not credible and they failed to prove the factual basis in support of their claim. That would have been the end of their claim or appeal.

32.  However, the Board took another step further and found in the alternative that even if the 1^st Applicant was subjectively in fear of the alleged harm, her fear was not reasonable and well-founded[9]. It found on the basis of authoritative and credible COI that even if the risks were real, adequate state protection was available and internal relocation feasible to minimize or avoid the risk of harm[10].

33.  Lastly, applying the law applicable to non-refoulement protection to its finding of fact, the Board concluded that the Applicants were not entitled to protection under any of the four applicable grounds under the USM[11].

34.  Furthermore, the Applicants’ claim does not involve any risk caused by their different political views or “statistical view”. This ground is obviously a template ground which has no bearing to the facts and circumstances of the Applicants’ case. There is no substance in this ground.

35.  For the same reasons as given in relation to Ground (1), the Board’s finding is a finding of fact and this Court could find no vitiating elements which could justify a review of the Board’s Decision.

Ground (3) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 2

36.  The particulars of this ground are as follows:

“Failure to reasons for assessment of Lack of BOR2 risk and/or sufficient basis to support conclusion of lack of BOR 2 risk. I would like to review my decision under BOR 2 that my life still in risk upon refoulement to my country of origin for which I would seek protection of my life.”

37.  Other than reiterating that she could not bring the 2^nd Applicant back to Indonesia, the 1^st Applicant could not advance any argument to support her complaint about the Board’s failure to give reasons for its assessment of their BOR 2 Risk. On the evidence, there is nothing to suggest there is a real risk that the Applicants will be arbitrarily deprived of their lives[12]. As analysed in the preceding section, the Board had given full reasons for its findings on the 1^st Applicant’s credibility, the reliability of her evidence and its findings in relation to the four applicable grounds, including BOR 2 Risk ground. There is no basis to interfere with the Board’s finding in respect of BOR 2 Risk ground.

Ground (4) - Error/Misdirection in law

38.  The particulars of this ground are as follows:

“Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me. My enemies still looking for me, my risk of my life still continue so in this circumstance I would not dare to return to my country.”

39.  The Applicants did not identify the misdirection complained of. It is not the Applicant’s case that they suffered ill-treatment in the form of psychological strain. The Board had adequately considered the issue of threat. There is no substance in this ground. This ground is clear evidence of blind use of template without regard to the actual facts of the case

Ground (5) - Procedural Impropriety 

40.  The particulars of this ground are as follows:

“The [Board] Failure to consider our fear that my enemies still fear for me, I could no return to my country in this circumstance, therefore there are genuine risk awaiting for me, and I could not relocate other places because they could easily trace me wherever I hide in my country.”

41.  This is a direct challenge of the Board’s finding of fact, which is not permissible, save for errors of law, procedural unfairness, or irrationality in the Decision. This Court’s finding in relation to Grounds (1) and (2) is a full answer to this complaint[13].

Ground (6) - Error/Misdirection in law

42.  The particulars of this ground are as follows:

“The [Board] failure to assessment my fear and my country of origin conditions that where as I would return I would not face a terrible risk upon refoulement, my life is under risk from my enemies so that I would not agree the decision of the Director so that I would review my decision.”

43.  The essence of the Applicants’ complaint is that they disagreed with the finding of the Board that it was safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact which is not permissible. The substance of this complaint has been dealt with under Ground (2).

Ground (7) - Error/Misdirection in law

44.  The particulars of this ground are as follows:

“No sufficient basis to conclude that I and my family members would not be at risk of being subjected to torture and or / CIDTP upon refoulement. Although my non refoulement claim assessed under Torture risk, BOR 1 & 2 risk and risk of persecution.”

45.  This is a repetition of the complaint under Ground (2). There is no substance in this complaint.

Ground (8) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 3

46.  The particulars of this ground taken from the 1^st Applicant’s letter dated 3 April 2024 are as follows:

“The [Board] assessed our application under Torture risk, BoR 2 & 3 risk and risk of persecution, in BoR 3 where clearly stated that not to refouled to a risky country where possible to face torture or life risk, I and my daughter who is still minor will be face torture or even more if we return. I would like to review the decision and request to consider my application under BOR 3 risk.”

47.  This is also a repetition of the complaint under Ground (2). There is no substance in this complaint.

Overall scrutiny

48.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

49.  The Board found the 1^st Applicant’s evidence not entirely credible or reliable. Its primary finding is that even accepting her evidence in its entirety she had failed to prove the factual basis in support of their claim. It went further and assumed even if she was subjectively in fear of the proscribed harm, her fear was not reasonable or well-founded. It then found in the further alternative that even if she had proved the factual basis as she alleged, on the basis of authoritative and credible COI, there was no real risk of harm; and should the risk of such harm be greater than a low one, adequate state protection and internal relocation would be available to minimize or avoid the risk. Hence, it found the Applicants were not entitled to protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding or application of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

50.  The Applicant’s application for leave to apply for judicial review is therefore refused.

  All the proceedings mentioned above are collectively referred to as the “first set of proceedings”.

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