|
HCAL 2195/2024
[2025] HKCFI 2348
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2195 of 2024
| BETWEEN |
|
|
|
Robiah |
1st Applicant |
|
Robiah Nathalie Bernice Ilboudo
|
2nd Applicant |
|
and
|
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
Director of Immigration
|
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave to apply for Judicial Review be refused
Observations for the Applicant:
Introduction
1. This is the 2nd Applicants’ application by Form 86 filed on 19 November 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 October 2024 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 December 2023 (the “Notice”), refusing her non-refoulement application. Though the 1st Applicant is a party to the leave application, her own application had been finally determined and dismissed. She is not entitled to any remedy under this leave application.
Legal representation
2. As the 2nd Applicant is a minor, the 1st Applicant representing her had been advised by letter from this Court dated 28 November 2024 of the requirement under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that her specific interest may be fairly put before the court. She had been advised to seek legal representation from a private lawyer or from the Legal Aid Department. At the hearing, both Applicants were not legally represented. The 1st Applicant confirmed she had applied for legal aid for the 2nd Applicant but her application was rejected. She said she had no means to instruct private lawyer and was confident that she could represent the 2nd Applicant.
3. Having considered the applicable law, the re-amended leave application, the issues raised, that the Applicants had been legally represented before the Director, that no new evidence would be advanced, the 1st Applicant’s expressed intention not to seek legal representation for herself and the 2nd Applicant, and that the 1st Applicant had represented herself and her elder daughter in a similar set of proceedings previously, the Court considered their leave applications may be justly determined without prejudicing the interest of the 2nd Applicant despite the absence of legal representation. The Court considered the lack of legal representation for the 2nd Applicant a mere irregularity which does not have the effect of rendering these proceedings a nullity. Hence, it proceeded to make a determination.
Background
4. The 1st Applicant is an Indonesian national, now aged 46. She is single with two daughters. Her parents and two siblings are living in Indonesia. She has lost contact with them since 2010. She had received 12 years of formal education and had 10 years’ experience working as a domestic helper in Singapore and Hong Kong. She is the 1st Applicant in this Application and in HCAL 2930/2018. She is the mother of the 2nd Applicant in this application and the 2nd Applicant in HCAL 2930/2018 (the “elder daughter”).
5. The 1st Applicant arrived in Hong Kong in 2002 to work as a foreign domestic helper. She contracted HIV in Hong Kong through sex with a stranger in 2007 and was diagnosed with HIV in June 2008. As result, she could not renew her employment contract in Hong Kong. She overstayed and was arrested on 28 July 2014. On 12 January 2015, she raised a non-refoulement claim. In the same year, she developed a relationship with a New Zealand African (“her boyfriend”) and gave birth to her elder daughter in September 2017. She also raised a non-refoulement claim on behalf of her elder daughter. Her relationship with her boyfriend ended in November 2017, but as the facts in the present application revealed, that relationship resumed at some stage to a certain extent. Her boyfriend travelled to China every now and then, visited them and supported them financially. In due course, the 1st Applicant’s and her elder daughter’s non- refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claims were rejected by the Director. Their appeals against the Director’s decision were dismissed by the Board. Their application for leave to apply for judicial review of the Board’s decision was refused by this Court. Their appeal against this Court’s decision was dismissed by the Court of Appeal, which also refused them leave to appeal to the Court of Final Appeal in 2023. The decision of the Board in respect of their claim is now final.
6. In 2023, the 1st Applicant gave birth to the 2nd Applicant by her boyfriend. Again, she made a non-refoulement claim on behalf of the 2nd Applicant and repeated the entire non-refoulement process, applying to the Immigration Department, appealing to the Board and now seeking leave to apply for judicial review of the Board’s Decision.
The 1st and 2nd Applicant’s claims
7. The basis of the 1st and 2nd Applicants’ non-refoulement claims under this Application as well as the elder daughter’s claim under HCAL 2930/2018 are the same. In gist, the 2nd Applicant claims, if refouled to Indonesia, she and the 1st Applicant will be at risk of harm from the 1st Applicant’s family and Muslim fanatics because she was mixed race and born out of wedlock to a single mother with HIV; and will be discriminated generally in education and social services.
8. The 1st Applicant claimed that she had been disowned by her family in Indonesia. Her mother had told her not to return to the family as her HIV infection would be a disgrace, curse and great shame to her family. Her father had threatened to kill her. She last contacted her family members in 2010. She is afraid of returning to Indonesia because she believes the doctors in Indonesia cannot keep a secret. She is concerned that she will be killed for having HIV. The risks she would face has an impact on the safety of the 2nd Applicant and her upbringing.
The finding of the Board in HCAL 2930/2018
9. The 1st Applicant testified before the Board. The Board accepted that stigmatization and discrimination against persons with HIV/AIDS were pervasive in Indonesia. However, it found on the basis of objective country of origin information (“COI”) a wide range of government and non-government services are available to people with AIDS and their children. AIDS medicine and treatment are freely available in Indonesia. The Indonesian government has taken steps to improve its medical facilities and to end stigmatism against people with HIV. As such, the Board did not accept that there is a particularly serious risk of the 1st Applicant’s conditions being divulged by the medical professionals, and concluded that she would be able to access free medication, treatment and check-ups upon returning to Indonesia, and that the current treatment would provide an opportunity for children and people with HIV to “live long and grow”.
10. As for the alleged threats from the 1st Applicant’s family, the Board found she had not suffered any harm from them. While her family may scold her or reject her, such ill-treatment would not amount to any of the proscribed harms protected under the USM. Besides, more than eight years had passed since the 1st Applicant’s last contact with them. Any risk of harm from her family would be low. The Board found there was no reason why the 1st Applicant would volunteer to tell others about her conditions as she considered it her private affair. Even if others find out about her condition, the possible discrimination or stigmatism she and her elder daughter may face would not give rise to any of the proscribed harms.
11. The Board did not accept that her elder daughter would be denied entry to school. It noted that divorce, illegitimacy, mixed race children, and birth outside wedlock had become more common and there was no credible evidence to suggest that discrimination or stigmatization against these children would give rise to any of the proscribed harms protected under the USM.
12. The Board found that with her education background and working experience, the 1st Applicant could relocate to other parts of the country, such as Jakarta or one of the urban areas. It noted that a larger number of people with HIV reside in urban cities of Indonesia where there is less stigmatism and discrimination. It also noted that her boyfriend had been supporting both of them and would likely continue his support in the future. In addition, they would be able to access a wide range of support and services from government and non-governmental agencies.
13. Applying the law applicable to non-refoulement protection to the above finding of facts, the Board held that the 1st Applicant and her daughter failed to establish the factual basis in support of their claim for non-refoulement protection. It therefore dismissed their appeals against the decision in the Director in rejecting their claims.
The 2nd Applicant’s case under the present application
14. The 2nd Applicant’s claim is essentially based on the 1st Applicant’s as summarised above. In gist, the 1st Applicant claims that if returned to Indonesia, the 2nd Applicant will be harmed or killed by her mother’s family, and discriminated and killed by the local community and Muslim fanatics.
15. The 1st Applicant claimed that because the 2nd Applicant was born out of wedlock and her mother was infected with HIV, she would not be accepted in Indonesia, and would even be harmed or killed by the Muslim fanatics, especially in her mother’s village. The 1st Applicant also firmly believed that her own family would kill the 2nd Applicant, as they did not accept her, notwithstanding she had no contact with them anymore. Moreover, the 1st Applicant feared that the 2nd Applicant would not be able to receive fair and adequate education and health care in Indonesia because of her mixed race and her mother’s background.
16. The 1st Applicant claimed she requires regular HIV treatment and medication while the 2nd Applicant requires regular check-ups and medication since birth. She asserted that it was impossible for her and her daughters to settle and make a living in big cities where HIV treatments are available because she could not afford the high costs of living there; but HIV treatment, checkups and medication are not available or accessible in cheaper areas. If she became ill and if not provided with treatment and medication, she would not be able to take care of her daughters.
The finding of the Board in the present application
17. The 1st Applicant testified before the Board. The Board was constituted of the same member who heard the 1st Applicant’s and her elder daughter’s appeal. The 1st Applicant’s elder daughter and the 2nd Applicant are HIV negative and are receiving regular checkups in a government clinic. The 1st Applicant was HIV positive and is receiving regular follow up treatment with antiretroviral therapy. Her condition has improved over the years and is stable. The Board accepted that she would require similar antiretroviral therapy and treatment upon her return to Indonesia. The 1st Applicant’s fear is that she would not be able to access free treatment and medication in Indonesia. She also claimed that the particular antiretroviral drug she is dependent on, Isentress, is not available in Indonesia.
18. While Indonesia is one of the countries in Southeast Asia that has a high number of HIV cases, the Board is satisfied from independent and credible COI that the Indonesian government has been making efforts to mitigate the situation. The number of new HIV infections has decreased significantly. Free antiretroviral treatments can be accessed from 896 stations in hospitals, 220 agencies and municipalities in 34 provinces. The COI shows that Isentress is available in Indonesia under the generic name of Truvada. It also shows that the government has been taking steps to encourage social tolerance, combat stigmatism and discrimination against people living with HIV/AIDS and to reduce new rate of infection and AIDS-related deaths. The Board did not accept that free antiretroviral treatment is limited to big cities, that the transportation costs or the inaccessibility of health care centres would prevent the 1st Applicant from accessing treatment or medication, or that the treatment and medication are unaffordable in Indonesia. It was satisfied that the COI addressed the 1st Applicant’s concerns about access to treatment of her condition so that she can bring up and care for the 2nd Applicant and her elder daughter.
19. The Board could find no evidence to indicate that the Indonesian government or the authorities specifically target or discriminate against mixed children, including those with parents living with HIV/AIDS. There is no information which indicates that mixed children born abroad, including those born out of wedlock, or whose parents including parents with HIV/AIDS are subjected to physical harm or attacks in Indonesia, except in Ache. There is also no information that any social stigma attached or social discrimination would give rise to the level of persecution, cruel, inhumane or degrading treatment or punishment.
20. As for the 1st Applicant’s worry about harm and discrimination from the community or Muslim fanatics, the Board considered her worries speculative. There is no credible evidence to indicate that the local community or society in Indonesia may have become aware or there is a real chance that they will become aware that the 1st Applicant had contracted HIV. In view of the passage of some fourteen years since the 1st Applicant’s last contact with her family in 2010 and the fact that no one in Indonesia knew about the 2nd Applicant’s birth, the Board did not accept there is any real chance that the 2nd Applicant’s grandparents or other family members in Indonesia, or people in their village, the community or Muslim fanatics, or anyone in Indonesia would discriminate or harm her, if she returns to Indonesia now or in the reasonably foreseeable future.
21. In view of the above factual finding, it was not necessary for the Board to consider the feasibility of internal relocation. Nevertheless, it did and it found the 1st Applicant’s grandparents and family members would not be able to locate the 2nd Applicant if she were to relocate to another part of Indonesia, such as Jakarta or Surabaya and it would not be unduly harsh to expect her to do so in order to protect the 2nd Applicant and her elder daughter.
22. Hence, the Board dismissed the 2nd Applicant’s appeal against the Director’s decision in the Notice.
Legal principles applicable to judicial review
23. 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[5].
Grounds for judicial review
24. The Applicants did not advance any grounds for judicial review in the Form 86 or their supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decisions.
Overall scrutiny
25. Having rigorously examined the two Decisions, 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 raised by the Applicants’ claims and observed a very high standard of fairness. The 1st Applicant has not raised any separate basis of claim on behalf of the 2nd Applicant, but raised some child-specific claims based on the 2nd Applicant’s personal circumstances. The Board assessed their claims on the basis of the case as they asserted. It found on the basis of the COI that the 1st Applicant will have access to free or affordable treatment and medication for her condition so that she will be able to look after and bring up the 2nd Applicant. Likewise, the 2nd Applicant will have access to free checkup and medication.
26. The Board could find no evidence to indicate that the government or the authorities specifically target or discriminate against mixed children, including those born out of wedlocks or with parents living with HIV/AIDS. It found the 2nd Applicant would not be at risk of harm or social discrimination from her grandparents or her family members, the community or Muslim fanatics, if she returns to Indonesia now or in the reasonably foreseeable future.
27. Though unnecessary for its decision, the Board found the Applicants could avoid the risk of harm by internal relocation, if the risks turn out to be real. Then, applying the law applicable to non-refoulement protection to those finding of facts, the Board came to the conclusion that 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 of the law, they are absolutely correct. The Court could not detect any error of law in the Decisions or procedural unfairness at any stage of the non-refoulement proceedings. The Decisions do satisfy the enhanced Wednesbury test. They are not Wednesbury unreasonable or irrational. The Decisions are utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
28. For the above reasons, the Applicants’ application for leave to apply for judicial review is refused.
Dated the 12th day of June 2025
| |
( Seline Sze )
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
|
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
|
|
Sent to the Applicant
on 12/06/2025
Robiah
Robiah Nathalie Bernice Ilboudo
Applicant’s ref. no:
Nil.
|
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/06/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9965/18/1/238/I1014;
USM 9965/18/1/238/I1015;
USM 22721
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1904/17 (Formerly RBCZ 10344/15); QA T/C 3418/17 (Formerly RBCZ 11694/17);
QA T/C 1300/23 (Formerly RBCZ 5001257/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
|