TARWI BT RIMIN DAMAD AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2008/2019

[2025] HKCFI 93

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2008 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 9, and the 3^rd applicant, her daughter, aged 7.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 23 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. However, there are only 2 Decisions respectively dated 31 May 2018 in respect of the 1^st and the 2^nd applicants and 2 June 2020 in respect of the 3^rd applicant. They are called (“the Board’s 1^st Decision” and “the Board’s 2^nd Decision, collectively called the Board’s Decisions”). Since the applicants’ cases rely upon the facts of the 1^st applicant, I shall consider the Board’s Decisions together below.

3.  It is noted that the application for leave to apply for judicial review of the Board’s 1^st Decision is out of time. Time expired on 30 August 2018. Form 86 was filed on 15 July 2019, which is about 11 months’ late. I shall deal with this issue below.

4.  The application for leave to apply for judicial review of the Board’s 2^nd Decision was made after Form 86 was issued. For case management purpose, the 3^rd applicant’s application should be dealt with together with the other applicants’ applications notwithstanding the Board’s 2^nd Decision was not issued when Form 86 was filed as the facts of the Board’s 2^nd Decision had already existed when Form 86 was issued[1].

5.  The applicants asked for a hearing. However, they were absent at the hearing on 2 December 2024. I shall deal with their application on the papers.

6.  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 as follows:

(1) the proposed respondent is the Board and the Director of Immigration is the interested party; and

(2) the decisions in respect of which relief is sought are the Board’s Decisions.

The applicants

7.  The 1^st, 2^nd and 3^rd applicants (“the applicants”) are Indonesians. The 1^st applicant arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 3 October 2011. Her employment contract was prematurely terminated on 18 June 2015 and she had overstayed since 3 July 2015. The 1^st applicant was arrested by the police on 10 September 2015 for overstaying and she was sentenced to imprisonment of 7 days suspended for 3 years on 16 September 2015. The 1^st applicant made a non-refoulement claim on 21 September 2015. She respectively gave birth to the 2^nd and 3^rd applicants on 6 March 2016 and 1 June 2018 respectively and she made a non-refoulement claim on their behalf on 23 September 2016 and 3 April 2019. The claims of the applicants were made on the basis that, if refouled, they would be harmed or even killed by the 1^st applicant’s ex-husband.

8.  According to the 1^st applicant, she married her ex-husband in April 1997 as arranged by her parents. After the 1^st applicant gave birth to her son in 2004, she started to experience domestic violence from her ex-husband. In 2006, she went to Abu Dhabi to work as a FDH, after which her ex-husband often threatened her through her parents as she left without his consent. The 1^st applicant returned to Indonesia in 2010. As she feared harm from her ex-husband, she did not return to her hometown, but stayed with her aunt. In October 2011, the 1^st applicant started her FDH employment in Hong Kong. In 2012, she instructed lawyers to serve a divorce petition on her ex-husband, but he refused to acknowledge receipt. The 1^st applicant met her current husband in early 2014 and they got married through a religious ceremony on 26 February 2014 in Hong Kong. On 6 March 2016, she gave birth to the 2^nd applicant. Subsequently, the 1^st applicant’s ex-husband discovered her relationship with another man and he threatened to kill her through her parents. On 1 June 2018, the 1^st applicant gave birth to the 3^rd applicant.

9.  The 1^st applicant had maintained contact with her parents and was informed that her ex-husband was still after her as well as the 2^nd and 3^rd applicants. The applicants did not seek assistance from the police because they had no money to bribe them. They also considered internal relocation not viable because the 1^st applicant lacked the necessary financial capability and that they also believed that the 1^st applicant’s ex-husband would exhaust all means to locate them.

10.  Details of applicants’ stories can be found in paragraph 8 of the Director’s Decision dated 19 December 2016 (“the Director’s 1^st Decision”) and paragraph 6 of the Director’s Decision dated 20 June 2019 (“the Director’s 2^nd Decision”).

The Director’s Decisions

11.  The Director considered the applicants’ claims in relation to the following risks (“the applicable risks”):

(a) 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”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c) 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”); and

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

12.  By way of the Director’s 1^st Decision, the Director dismissed the 1^st and 2^nd applicants’ claims on the applicable risks. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from the 1^st applicant’s ex-husband indicated a small future risk of harm upon their return to Indonesia [15]-[18]; (ii) the behaviour of the 1^st applicant’s ex-husband showed that he had no real intention to seriously harm or kill them, so that the risk of harm was not as imminent as asserted [19]-[22]; (iii) there was no evidence that the 1^st applicant had suffered any serious mental harm as a result of the mistreatment from her ex-husband [23]; (iv) state protection would be available and there were also humanitarian organisations to provide assistance [24]-[33]; (v) internal relocation would be viable [34]-[41] and (vi) the 1^st applicant’s failure and delay in seeking non- refoulement protection in Abu Dhabi and Hong Kong respectively cast doubt on the general credibility of her claim [43]-[46].

13.  By way of the Director’s 2^nd Decision, the Director dismissed 3^rd applicant’s claim on the applicable risks. The Director found that (i) the behaviour of the 1^st applicant’s ex-husband showed that he had no real intention to seriously harm or kill the 1^st applicant, so that the claimed risk of harm against the 3^rd applicant was exaggerated and unconvincing [12]; (ii) the matter was a private family dispute with no evidence of state involvement [14]; (iii) state protection would be available [15]-[20]; (iv) internal relocation would be viable [21].

The Board’s Decisions

14.  The 1^st and 2^nd applicants appealed the Director’s 1^st Decision to the Board. In the Notice of Appeal/Petition, the 1^st applicant raised a new claim for fearing harm from her ex-husband’s creditors [24]. On 2 March 2018, the Board conducted an oral hearing. The applicants were not legally represented.

15.  The Board did not find the 1^st applicant’s claim about fearing violence from her ex-husband genuine or credible because they had ceased contact for a long time and that her ex-husband had even remarried twice. The Board also rejected the 1^st applicant’s claim about fearing harm from her ex-husband’s creditors as it had never been raised before. As to the child specific issues in relation to the 2^nd applicant, the Board noted that while the country of origin information (“COI”) indicated discrimination against children born out of wedlock in Indonesia, such issue was irrelevant in the present case because the 1^st applicant confirmed that she had married the 2^nd applicant’s father and the birth certificate of the 2^nd applicant also had the names of both of her parents [41]-[43], [45]-[46].

16.  Based on such findings, the Board rejected the 1^st and 2^nd applicants’ claim on the applicable risks [49]-[59]. The 1^st and 2^nd applicants’ appeals were therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

17.  The 3^rd applicant also appealed the Director’s 2^nd Decision to the Board. On 21 November 2019, the Board conducted an oral hearing, with the 3^rd applicant having no legal representation. As the 3^rd applicant’s application was based on the 1^st applicant’s claim, credibility was assessed against the latter [18].

18.  Based on the findings in the Board’s 1^st Decision, the Board did not find the 1^st applicant’s claim about fearing violence from her ex-husband genuine or credible [20]-[21]. As such, the Board rejected the 3^rd applicant’s claim that she would face a real risk of harm from the 1^st applicant’s ex-husband upon return to Indonesia [23]-[24]. The Board also found the issue about child born out of wedlock facing discrimination in Indonesia irrelevant given that the 1^st applicant had married the 3^rd applicant’s father [25].

19.  Based on such findings, the Board rejected the 3^rd applicant’s claim on the applicable risks [26]-[35]. The 3^rd applicant’s appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

20.  The applicants filed their Form 86 on 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

21.  In the 1^st applicant’s affirmation in support of their application, the 1^st applicant has not raised any specific reason to challenge the Board’s Decisions.

DISCUSSION

22.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicants’ case.

23.  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 Decisions 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).

24.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that the Board was not wrong. When asked if she has any minor specific issues for the Court’s consideration, she said there is none.

25.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

26.  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.

27.  It is clear that the Board had separate consideration of the child specific issues for the 2^nd and the 3^rd applicants as shown in the Board’s Decision §89. The 1^st applicant has confirmed that there is no child specific issues for the Court’s consideration.

28.  The applicants have not raised any valid reason to challenge the Board’s Decisions.

29.  The applicants therefore have failed to show that they have a reasonable prospect of success in their intended judicial review application.

DISPOSITION

30.  I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their joint application.