YENI ASTUTI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1710/2021 and HCAL 548/2024
(Heard together)

[2024] HKCFI 2562

HCAL 1710/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1710 OF 2021

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AND

HCAL 548/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 548 OF 2024

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____________

(Heard Together)

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JUDGMENT

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THE APPLICATIONS

1.  The The 1^st and the 2^nd applicants are parties in HCAL 548 of 2024. The 1^st applicant and the 3^rd applicant are parties in the action of HCAL 1710 of 2021. Since the 1^st applicant’s claim had been finally determined as mentioned in paragraphs 3 and 4 below, the 1^st applicant is treated as the guardian ad litem of the 2^nd and the 3^rd applicants respectively.

2.  The 1^st applicant is the mother, aged 41; the 2^nd and the 3^rd applicants, respectively aged 4 and 2, are her daughters.

3.  The 1^st applicant made non-refoulement claim to the Director of Immigration (“the Director”) for herself in 2014. The Director refused her claim and she appealed to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) in 2017. The Board dismissed her appeal. She applied to the High Court for leave to apply for judicial review of the Board’s decision in 2018. By Form CALL-1 dated 29 October 2018, the court dismissed her application. [2018] HKCFI 2334. She appealed to the Court of Appeal and failed. [2019] HKCA 396. She applied for leave to appeal to the Court of Final Appeal and the Court of Appeal dismissed her application. [2019] HKCA 848. On 16 April 2019, she applied to the Court of Final Appeal for leave to appeal, and her application was dismissed on 2 August 2019.

4.  Insofar as the facts in support of the 1^st applicant’s claim are concerned, they have been finally determined.

5.  In October 2020, the 1^st applicant, acting as the guardian ad litem, applied for non-refoulment claim for the 2^nd applicant. The 2^nd applicant’s claim relied on the facts of the 1^st applicant. The Director refused the 2^nd applicant’s applications. The 2^nd applicant appealed to the Board. She was legally represented before the Board. The Board dismissed her appeal by its Decision dated 12 October 2021 (“the Board’s 1^st Decision”). The 2^nd applicants applied to the High Court for leave to apply for judicial review of the Board’s 1^st Decision, which is HCAL 1710 of 2021.

6.  In May 2023, the 1^st applicant, acting as the guardian of the 3^rd applicant, lodged a non-refoulement claim to the Director for the 3^rd applicant. The 3^rd applicant relied upon the facts of the 1^st applicant in support of her claim. By Notice of Decision dated 16 May 2023, the Director refused the 3^rd applicant’s application. The 3^rd applicant appealed to the Board. She was legally represented before the Board. By Decision dated 5 January 2024 (“the Board’s 2^nd Decision”), the Board dismissed her appeal. The 3^rd applicant applied to the High Court for leave to apply for judicial review of the Board’s 2^nd Decision, which is HCAL 548 of 2024.

7.  For brevity, the Board’s 1^st Decision and the Board’s 2^nd Decision are collectively called (“the Board’s Decisions”).

8.  Since the nature of HCAL 1701 of 2021 and HCAL 548 of 2024 is the same, these 2 applications are heard together.

The applicants

9.  The applicants are Indonesians. The 1^st applicant last arrived in Hong Kong as a visitor on 18 August 2012 and she overstayed since 22 August 2012. She was arrested by the police on 27 February 2013 and was sentenced to imprisonment of two weeks suspended for 18 months on 6 March 2013. The 1^st applicant made a non-refoulement claim in March and April 2013. The claim was rejected by the Director on 25 July 2016 and 10 July 2017, while the subsequent appeal was also dismissed by the Board on 17 January 2018. Thereafter, the 1^st applicant brought the case to Court, where her application for (i) judicial review against the Board’s Decision, (ii) appeal against the leave dismissal and (iii) leave to appeal to the Court of Final Appeal were all rejected.

10.  The 1^st applicant gave birth to the 2^nd applicant on 23 June 2020. On 9 October 2020, the 1^st applicant made a subsequent non-refoulement claim for herself and a non-refoulement claim on behalf of the 2^nd applicant. On 27 June 2022, the 1^st applicant gave birth to the 3^rd applicant and she made a non-refoulement claim on her behalf on 6 December 2022 and 10 February 2023. The claims were made on the basis that, if refouled, they would be harmed or even killed by the creditor of the 1^st applicant’s husband (“the creditor”) because his loan remain unpaid. They also feared harm from the 1^st applicant’s husband and family as well as people in the 1^st applicant’s community because the 2^nd and 3^rd applicants were illegitimate children.

11.  According to the 1^st applicant, she married her husband in July 2006, but he left her in August 2006. In February 2007, the 1^st applicant gave birth to her daughter in Indonesia. In around December 2009, while the 1^st applicant was working as a foreign domestic helper in Hong Kong, she was informed by her mother that her husband had taken out a loan from the creditor and the creditor’s underlings were demanding repayment at her maiden home. The 1^st applicant claimed that the creditor came for her because her husband had changed the address in his identity card to her maiden home’s address. When the 1^st applicant called her mother in around May 2016, she was told that the threat from the creditor was still continuing. In around June 2020, the 1^st applicant was informed by her sister that the creditor’s underlings even vandalised her maiden home and injured her brother.

12.  Meanwhile, the 1^st applicant started a relationship with the 2^nd and 3^rd applicants’ father in 2010, who was a Nepalese and a Hindu. On 23 June 2020 and 27 June 2022, she gave birth to the 2^nd and 3^rd applicants respectively. Given that the 2^nd and 3^rd applicants were illegitimate children born out of wedlock, the 1^st applicant feared that her husband would kill both her and her children. She also believed that she and her children would be rejected by her family and be discriminated by the community because illegitimate child was not acceptable under Muslim culture.

13.  The 1^st applicant was of the view that they could not seek protection from the police because they were inefficient, corrupt and lacked accountability. Internal relocation would not be viable as well because they feared to be located by the creditor given that he was a wealthy person and had affiliation with the police. The 1^st applicant also worried about their financial capability to live elsewhere as it might be difficult for her to obtain gainful employment.

14.  Details of the 1^st, 2^nd and 3^rd applicants’ stories can be found in paragraphs 13 and 15 of the Director’s Decision dated 24 February 2021 (“the Director’s 1^st Decision”) and paragraph 6 of the Director’s Decision dated 16 May 2023 (“the Director’s 2^nd Decision”).

The Director’s 1^st Decision

15.  The Director considered the 2^nd applicants’ claim in relation to the following 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”).

16.  By way of the Director’s 1^st Decision, the Director dismissed the 2^nd applicants’ claim. As the 2^nd applicant’s claim relied upon the facts of the 1^st applicant, the Director found that (i) it was the 1^st applicant’s mere speculation that she would be liable to repay her husband’s loan to the creditor [25]; (ii) the 1^st applicant’s behaviour showed that the threat from the creditor was not as imminent as she claimed [26]; (iii) the vandalisation of the 1^st applicant’s maiden home and her brother’s injury by the creditor’s underlings were merely hearsay [27]; (iv) the past action of the creditor indicated that he had no real intention to inflict serious harm [28]; (v) the claimed risk of harm from the 1^st applicant’s husband and family as well as from the community were merely bare assertions [29]; (vi) state protection would be available [30]; (vii) internal relocation would be viable [31] and (viii) the 2^nd applicants’ case failed to meet any of the requirements under BOR 2 and BOR 3 risk [32]-[37], Persecution risk [38]-[42] or Torture risk [43]-[45].

The Director’s 2^nd Decision

17.  The Director considered the 3^rd applicant’s claim in relation to the following 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”).

18.  By way of the Director’s 2^nd Decision, the Director dismissed the 3^rd applicant’s claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from the creditor and the 1^st applicant’s husband indicated a small future risk of harm upon the 3^rd applicant’s return to Indonesia [12]; (ii) the claim that the 3^rd applicant would be killed by the 1^st applicant’s husband was a bare assertion [13]; (iii) there was no evidence showing that the creditor had any real intention to seriously harm or kill the 3^rd applicant [14]; (iv) there was nothing indicating that the creditor was associated with the Indonesian government [15]; (v) the 3^rd applicant’s concern that she would be discriminated and be denied access to basic services was without basis [16]; (vi) the absence of threat from the 1^st applicant’s family and the community indicated that the risk of harm was not as imminent as claimed [17]; (vii) state protection would be available [18]-[20]; (viii) internal relocation would be viable [21] and (ix) the 3^rd applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[33] or Torture risk [34]-[37].

The Board’s 1^st Decision

19.  The 2^nd applicant appealed the Director’s 1^st Decision to the Board. On 30 September 2021, the Board conducted oral hearing.

20.  Regarding the 1^st applicant’s husband, the Board found the claim about the changing of address in his identity card to the address of the applicant’s maiden home questionable [115]. The Board also found it unconvincing that the 1^st applicant would forget the date when she and her husband got married and that she would fail to mention undergoing a legal marriage in addition to a Muslim marriage with her husband in her previous evidence. The Board further doubted that the 1^st applicant’s husband could borrow a large sum of money from the creditor without collateral and that he could change the address on his identity card without documentary proof [116]-[120]. In any event, the country of origin information (“COI”) showed that there were various avenues that provide assistance to victims of domestic violence in Indonesia [121]-[123] and there was no indication that the 1^st applicant’s husband would come back to the 1^st applicant after deserting her all these years [130].

21.  In relation to the claim against the creditor, the Board had doubts that he and his underlings would suddenly vandalise the 1^st applicant’s maiden house and assaulted her brother in June 2020 as it had been more than ten years since the claimed debt was taken out by the 1^st applicant’s husband [125]. It was also questionable as to why the first occasion of threat from the creditor only came in December 2009, i.e. more than two years after the 1^st applicant’s husband abandoned her [126]. In any event, the claim against the creditor was based largely on hearsay and speculation [127]-[128].

22.  As to the claimed threat from the 1^st applicant’s family and people at her community, the Board found no evidence indicating that they would harm the 1^st and 2^nd applicants upon their return [131]. The claim that the 2^nd applicant would be denied access to basic services was also without basis [132]-[133].

23.  The Board did not find the 1^st applicant credible given that her claim was based on questionable and unreliable evidence. It was not accepted that the 1^st and 2^nd applicants would face any real risk of harm from the creditor, the 1^st applicant’s husband and family as well as people in the community [135]-[136].

24.  In any event, the claimed ill-treatment failed to reach the requisite level of severity and there was no evidence of involvement by the Indonesian authorities in the matter. Based on such findings, the Board concluded that the 1^st and 2^nd applicants’ case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [80]-[92], [137]-[157]. Furthermore, state protection and internal relocation would also be available according to the COI [57]-[71], [140]-[141].

25.  The Board therefore dismissed the 2^nd applicants’ appeal and confirmed the Director’s 1^st Decision (“the Board’s 1^st Decision”).

The Board’s 2^nd Decision

26.  The 3^rd applicant appealed the Director’s 2^nd Decision to the Board. On 20 December 2023, the Board conducted an oral hearing.

27.  The Board noted that the 3^rd applicant’s claim was largely based upon the 2^nd applicant’s claim. Applying the same reasoning as in the Board’s 1^st Decision, the Board dismissed the 3^rd applicant’s appeal and confirmed the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

The Board’s 2^nd Decision

28.  The applicants have filed Form 86 for leave to apply for judicial review of the Board’s Decisions.

29.  On behalf of the 2^nd and the 3^rd applicant, the 1^st applicant filed affirmations in support of their applications. In the affirmations, the 1^st applicant only reiterated her reasons for staying in Hong Kong, without specifying any reason to challenge the Board’s Decisions.

DISCUSSION

30.  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 Decision 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).

31.  The facts of the 1^st applicant in support of her claim have been determined and are final. The 2^nd and the 3^rd applicants’ claims rely upon the facts of the 1^st applicant. At the hearings before the Board, the 2^nd and the 3^rd applicants were legally represented. The issues 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 do not arise.

32.  The child specific issues are that they were illegitimate children and they would be harmed by the 1^st applicant’s husband if they return to Indonesia. These issues have been dealt with by the Board. They do not constitute any valid reason in support of the 2^nd and the 3^rd applicants’ claim.

33.  Therefore, I find that the 2^nd and the 3^rd applicants fail to show that they have any realistic prospect of success in the intended application for leave for judicial review of the Board’s Decisions.

DISPOSITION

34.  As the 1^st applicant is treated as the guardian ad litem of the 2^nd and the 3^rd applicants, no order will be made against her. However, I shall warn her that if she continues to institute any legal proceeding on the same facts again, the Court will consider imposing a Restrictive Proceeding Order on her.

35.  I refuse to grant leave to the 2^nd and/or the 3^rd applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their respective applications.

36.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s and the 3^rd applicant’s applications a nullity.