DIAN LESTARI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 78/2019

[2024] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 78 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 and the 2nd Applicant being excused (“the Applicants”);

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 41-year-old national of Indonesia who last arrived in Hong Kong in July 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 7 October 2015, she did not depart and instead overstayed, and on 11 March 2016 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her family and/or the Muslim community for having converted her religion from Islam to Christianity in Hong Kong, and after giving birth to her daughter, the 2^nd Applicant (“A2”) on 20 July 2016 in Hong Kong, she also raised a similar claim for her on the same basis and to be jointly determined with hers. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised as a Muslim in JL Sunter Agung, Agung Permai, Jakarta, Indonesia. After leaving school she went to work in Macau, and in July 2011 she started coming to Hong Kong to work as a foreign domestic helper.

3.  In May 2015 she formed a relationship with a Hong Kong resident Lee who is a Christian, and under his influence she soon converted her religion to Christianity at a church which she could not remember the name and without formal baptism, and in which she would regularly attend service with Lee every Sunday.

4.  However, when she subsequently informed her parents in Indonesia of her religious conversion, they became furious with her for bringing shame to the family, and for which her father threatened to kill her when she returned to Indonesia.

5.  In October 2015 she discovered her pregnancy of A2 and therefore left her employment and went into hiding, and on 11 March 2016 she surrendered to the Immigration Department and raised her non-refoulement claim, and upon giving birth to A2 she also raised a similar claim on the same basis for her, and completed a joint Non-refoulement Claim Form (“NCF”) on 9 January 2017 for their claims and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 10 February 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s family and the local Muslim community upon their return to Indonesia 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 A1’s parents and family to harm or kill them, that in any event it was a private dispute within their family 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 religious freedom is allowed and recognized in Indonesia with Christianity being the second largest religion practiced in the country without any risk of persecution from any other religions, that various government departments and NGOs such as PEKKA and Komunitas Single Parents are available to offer support and assistance to A1 as a single parent and A2 as an illegitimate child born out of wedlock if needed, and that reasonable internal relocation alternatives are also available in Indonesia with a large population of 255 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move 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.

8.  On 17 February 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 21 August 2018 before the Board during which A1 gave evidence on behalf of both of them and answered questions raised of their claims by the Adjudicator for the Board.  On 4 January 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found the reactions of A1’s parents and family towards her claimed religious conversion as just show of disapproval and disappointment at her without any real intention to seriously harm or kill her, that even if such risk were real that it arose from some private personal dispute within her family without any official involvement that state or police protection would be available to her and her daughter if resorted to upon their return to Indonesia, that relevant COI show that there is freedom of religion in Indonesia with Christianity being the second largest religion after Islam and also the second largest Christian population, and that supports and assistances from various government departments and NGOs are available to both A1 and A2 respectively as single mother and illegitimate child as well as reasonable internal relocation for them to move safely to other parts of the country with large Christian population and away from A1’s home district without any risk of being located or any risk of any discrimination or persecution from any Muslim community that their claims for non-refoulement protection failed on all applicable grounds.    

10.  On 9 January 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in A1’s supporting affirmation of the same date they put forward the following grounds for their intended challenge:

(1)  Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into the relevant and up-to-date COI as to the wide and general situation or the Applicants’ own circumstances resulting in dismissing their case founded upon an unfair procedure;

(2)  Irrationality in that the Adjudicator failed to take into account or weight of the relevant COI and instead just cherry-picking COI of little or no relevance or relied on outdated COI and thus arrived at a decision of dismissing the Applicants’ case which is not reasonable by the Wednesbury standard;

(3)  Irrationality in that the Adjudicator failed to evaluate and to make finding of fact as to whether there exists in Indonesia a consistent pattern of gross flagrant or mass violence of human rights as mandated pursuant to Article 3(2) of CAT with the consequence that the decision is unreasonable;

(4)  Irrationality in that the Adjudicator failed to analyse and assess whether state protection exists in Indonesia under the extended meaning of whether the state would exercise due diligence or sufficient due diligence that the Adjudicator had misdirected herself on the law erroneously stating what the extended meaning of state protection was;

(5)  Irrationality in that the Board took into account and put weight on irrelevant considerations or considerations there were incorrect or inaccurate or not based on fact or acts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicants with the consequence that the Board arrived at a decision in dismissing the Applicants’ case that was unreasonable;

(6)  Procedural impropriety in that the Board failed to call for psychological and psychiatric evaluations and reports at any stage of the screening process or at the appeal stage;

(7)  Procedural impropriety/unfairness in that the Adjudicator applied the incorrect standard of proof in the decision;

(8)  Procedural impropriety/unfairness in the lack of legal representation for the Applicants in their appeal to the Board and hence were not afforded with a fair procedure; and

(9)  Procedural impropriety/unfairness in that the hearing bundle was given to the Applicants just few days before the appeal hearing with the majority of the documents in English thereby giving A1 insufficient time to prepare for the appeal hearing due to her limited skills in English and without legal representation that she was confused in terms of what happened during the appeal hearing that led to her credibility being found questionable by the Board.

11.  These are however all just some broad and vague assertions of A1 containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or conduct proper inquiries into the situation in Indonesia, or how did the Adjudicator apply the incorrect standard of proof, or why it was necessary to call for psychological or psychiatric evaluations or reports on the Applicants. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

12.  As for the only complaint which A1 appeared to have given any elaboration that the hearing bundle was provided to the Applicants just a few days before the scheduled appeal hearing with the majority of the documents including the Director’s skeleton arguments in English of which she was not familiar with, and thereby giving her insufficient time to prepare for the appeal hearing, even assuming that the hearing bundle was indeed provided shortly before the hearing, of which A1 did not provide any documentary evidence such as the covering letter to show the actual date of the delivery, I note that most of the documents such as their NCF and records of screening interview as well as the Director’s decision had earlier already been provided to the Applicants while they were represented by DLS and should be well familiar to them, while A1 was able to present their case at the appeal hearing assisted by an interpreter without any difficulty, and that during which she never raised any issue with the Board over the hearing bundle or the documents or sought any adjournment of the hearing due to any preparation issue. As such, I do not find anything amiss arising from the provision of the hearing bundle to the Applicants or any merits in this complaint either.          

13.  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.

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

15.  I am of course mindful of the fact that A2 being a minor at the present age of 7 years old was without legal representation during her appeal to the Board, or in her present leave application as required by Order 80 rule 2 of the Rules of the High Court, after her mother’s recent application for Legal Aid for A2 upon the Court’s advice but was somehow refused by the Legal Aid Department, and hence it would be necessary to separately consider and examine whether A2’s claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that 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.

16.  In the present case with A2, having subjected the Board’s decision to rigorous examination and anxious scrutiny, and while the Board did not deal with her claim under a separate section from A1, reading the decision as a whole, I am satisfied that the Board did do so separately and properly, as evidenced in its detailed analysis and reasoning set out in [142] - [161] specific to A2’s personal circumstances, and in the absence of any evidence or suggestion from her mother as to the religion of A2, if any, I do not find any underlying matter which might support her minor-specific non-refoulement basis or ground but which had not been advanced before the Board due to lack of legal representation for her in her appeal before the Board or in these proceedings.

17.  In the premises, and having considered the decisions of 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, or any failure on their parts to apply high standards of fairness in their consideration and determination of the Applicants’ claims, and shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review: see Zoraydah [2020] HKCA 442, and Jassal Tajinder Kumar [2021] HKCA 124.             

18.  For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their 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