ARINA SUSILAWATI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1166/2019

[2024] HKCFI 793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1166 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 the Applicants being absent in open court.

Leave to apply for Judicial Review be refused

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant is the mother, the 2^nd applicant and the 3^rd applicant, both born in Hong Kong, respectively aged 9 and 7, are her sons.

2.  The 1^st applicant acts as guardian ad litem of the 2^nd and the 3^rd applicants.  They jointly apply for leave to apply for judicial review of the decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing their appeals against the Director’s Decisions rejecting their claims for non-refoulement.  The children’s claims reply upon the mother’s facts.

3.  The 1^st applicant put down in Form 86 30 January 2018 as the date of the Board’s Decision.  In fact, it is the date of the Board’s hearing of the appeals of the 1^st applicant and the 2^nd applicant.  The date of the Board’s Decision is 18 July 2019.  There is another Board’s Decision dated 29 September 2020 dismissing the 3^rd applicant’s appeal against the Director’s decision on the 3^rd applicant’s non-refoulement claim. The Decision dated 18 July 2019 and the Decision dated 29 September 2020 are collectively called (“the Board’s Decisions”).

4.  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 that the proposed respondent is the Board and the Director of Immigration is the interested party and the decisions in respect of which relief is sought is the Board’s Decisions.

5.  Since the 2^nd and the 3^rd applicants are minors, the Court fixed a hearing for them. They were absent on 17 May 2023. A medical chit was subsequent received by the Court. Another date was therefore fixed for them to appear on 26 June 2023. They were absent on that day without any prior notice to the Court. The Court decided to deal with their joint application on paper.

The applicants

6.  The 1^st applicant is a national of Indonesia.  She came to Hong Kong 12 December 2012 to work as a domestic helper.  Her employment contract was prematurely terminated on 11 March 2013 and she had to depart on or before 25 March 2013.  She did not depart and was arrested by police on 20 February 2014.  She was released on recognizance. She gave birth to the 2^nd applicant on 4 May 2015.

7.  By written representations in 2015, the 1^st applicant, on behalf of herself and the 2^nd applicant, lodged the non-refoulement claim. The 1^st applicant claimed that, if refouled, she would be harmed or killed by her money lenders in Indonesia as she was unable to repay the debt.

8.  Briefly, the applicant and her father had borrowed money from some creditors between 2005 and 2008. The 1^st applicant’s creditor is called Bang J. In 2008, the 1^st applicant went to Singapore to work for 2 years.  Then she worked in Hong Kong.  She returned to Indonesia in 2011 after her employment in Hong Kong was terminated.  Bang J and his men located her and kidnapped her. She was detained at an unknown place. She was beaten with iron bars for several times.  Bang demanded her to sell dangerous drug for him.  She refused.  With the help of someone unknown to her, she managed to escape to live in her friend’s place in East Jakarta.  She received medical treatment for her injury.  She had reported the incident to police in East Jakarta, which did not take any action.  She did not report to any other police station. In January 2012, she left Indonesia for Hong Kong.  Then, she was told by her friend that her father had passed away.  Her employment contract was terminated in August 2012.  She returned to Indonesia to look for her family, but was in vain.  She hid herself in various places.  Nothing happened.  In December 2012, she came to Hong Kong again for another contract. This contract was terminated too in March 2013. In 2014, she married to an Indian man without a marriage certificate.  On 4 May 2015, she gave birth to the 2^nd applicant.Details of their claims are set out at paragraph 6 of the Notice of Decision dated 21 December 2015 by the Director (the “Director’s First Decision”).

9.  The 1^st applicant gave birth to the 3^rd applicant on 2 February 2017. She applied for non-refoulement protection for the 3^rd applicant. By the Notice of Decision dated 1 August 2019 (the “Director’s Decision on the 3^rd applicant”), the Director rejected the 3^rd applicant’s claim.

The Director’s Decisions

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

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

b.  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”);

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

d.  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”).

11.  The Director first assessed the claims of the 1^st and the 2^nd applicants on Torture risk, BOR 3 risk and Persecution risk and, by the Director’s Decision, rejected their claims as not real and unforeseeable [12]. By Notice of Further Decision dated 21 July 2017 (the “Director’s Further Decision”), the Director rejected their claims on BOR 2 risk. By Director’s Decision on the 3^rd applicant, the Director rejected the 3^rd applicant’s claim on all applicable risks for the same reasons.

The Board’s Decision

12.  The applicants appealed the Director’s Decision and the Director’s Further Decision to the Board. The 1^st applicant and the 2^nd applicant appeared before the Board on 30 January 2018 and the 1^st applicant gave oral evidence.

13.  Having considered the evidence, the Board found that the 1^st applicant was an unreliable witness [72] - [73]. The Board gave examples of her unreliability – delaying medical examination for her gun injury on her leg and subsequently changed her evidence [74] - [78]; and there were many other aspects of her evidence which undermined her credibility [79] - [85].  At paragraph 85, the Board said:

“… She is clearly a dishonest witness prepared to tell lies and alter her story to further her claim. In such circumstances I find that there is no reliable evidence that she faces danger from her or her father’s alleged creditors if she returned to Indonesia….”

14.  The Board had made separate assessment on the 2^nd applicant, taking into consideration of the 3^rd applicant though the 3^rd applicant was not yet a party at the time on the following issues:

(1)   He was born in Hong Kong and is also a citizen of Indonesia [1];

(2)   The 1^st applicant would be able to obtain employment in domestic service in Indonesia and the father of the children would also support the children (taking into consideration of the 3^rd applicant who was not the party at that time) financially. But even without financial support from the father, the Board was satisfied that the lives and health of children would not be at risk in Indonesia [86] - [88];

(3)   The Constitution of Indonesia would provide protection to the children for living and education [91] - [92];

(4)   There are services for vulnerable children and their families in Indonesia [93];

(5)   There are community-based child protection mechanism and government protection to provide support for children in need [94];

(6)   Comprehensive protection for families and children need would be provided by the government in Indonesia [95].

15.  The Board finally came to the conclusion the 2^nd applicant and the 3^rd applicant are not in need of non-refoulement protection.

16.  After the Director had rejected the 3^rd applicant’s claim for non-refoulement, the 1^st applicant on behalf of the 3^rd applicant, appealed to the Board. The 1^st applicant attended the Directions Hearing on 19 May 2020 and 14 September 2020 for the purpose of ascertaining the medical condition of the 3^rd applicant and to determine whether a further hearing was necessary. The 1^st applicant informed the Board that the 3^rd applicant had undergone two surgical operations which appeared to have successfully dealt with problem of his two undescended testes and the problem with his eyesight had been fixed. The Board decided that no further hearing would be necessary and it proceeded to assess the 3^rd applicant’s appeal.

17.  In an interview with the 1^st applicant on 22 July 2019, the adjudicator discussed with the 1^st applicant on the specific issues relating to the 3^rd applicant. The 1^st applicant had raised 4 issues concerning the risk of the money lender in Indonesia, the 3^rd applicant’s medical condition in Indonesia, the 1^st applicant’s employment and accommodation in Indonesia and the birth registration of the 3^rd applicant in Indonesia which would affect his eligibility for education and medical services [17].

18.  Having considered the relevant country of origin information (“COI”) [21] - [28], the Board found:

“29. The Board is therefore satisfied that it has failed to be shown on behalf of the appellant that there is a real chance or substantial grounds for believing that the appellant would be at risk of any harm warranting non-refoulement protection if he was taken to Indonesia.”

Application for leave to apply for judicial review

19.  The applicants filed Form 86 on 2 May 2018 for leave to apply for judicial review of the Board’s Decision.

20.  In the 1^st applicant’s affirmation in support of their application, the 1^st applicant submitted that the Board disregarded their dangerous situation.

DISCUSSION

21.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

22.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

23.  The Board had, for the reasons given, rejected the 1^st applicant’s evidence on the facts of the case.  There is nothing from the 1^st applicant to challenge the Board’s finding on this issue.

24.  The Board had already considered the 2^nd and the 3^rd applicants’ specific issues before it came to the conclusion that they do not require non-refoulement protection.

25.  The applicants fail to show that there is any realistic prospect of success in their proposed judicial review.

CONCLUSION

26.  I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decisions.  Accordingly, I dismiss their joint 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