SUSI-SUSYANTI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1551/2020

[2026] HKCFI 1520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1551 OF 2020

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;

1.  Extension of time for the 1^st Applicant’s application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 18 October 2019 be refused;

2.  The 1^st Applicant’s application for leave to apply for Judicial Review be dismissed;

3.  Leave for the 2^nd Applicant to apply for Judicial Review be granted;

4.  The 2^nd Applicant be represented by the Official Solicitor pursuant to Order 80, rule 2 of the RHC;

5.  The 2^nd Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

6.  The 2^nd Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 43-year-old national of Indonesia who last arrived in Hong Kong on 20 July 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 July 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 10 February 2018, she did not depart and instead overstayed, during which she met and formed a relationship with a Nigerian man in Hong Kong, and upon becoming pregnant with their child, she surrendered to the Immigration Department on 7 January 2019 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 fiancé and her family in Indonesia over her said relationship and pregnancy with another man in Hong Kong and/or by her creditor for failing to repay her debts, and upon giving birth to her son, the 2^nd Applicant (“A2”) on 27 May 2019, she also separately raised a non-refoulement claim for him on the same bases of her own claim.

2.  A1 was born and raised as a Muslim in DS. Tegal Wirangrong, Kertasmaya, Indramayu, Jabar, Indonesia. After leaving school she worked as a salesperson before going to Singapore in 2007 to work as a domestic servant, and then in 2009 she started coming to Hong Kong to work as a foreign domestic helper.

3.  In 2013, she returned to her home district to become engaged to her fiancé Rudi who worked as a car repair mechanic but was also said to be a member of some criminal gang in her home district, and thereafter she returned to Hong Kong to continue with her employment.

4.  In 2017, at her parents’ request A1 borrowed a loan from some loan company in Hong Kong for their home repair expenses, and for which she was to repay by monthly instalments from her salary.

5.  During her stay in Hong Kong, A1 met and eventually formed a relationship with a Nigerian man by the name of Michael who was operating some business in Hong Kong, but in August 2018 while Michael was on a business trip to Canada, A1 discovered that she was pregnant, and when she informed her family in Indonesia, her parents were furious that her such conduct with another man despite being engaged to her fiancé and with a child to be born out of wedlock would bring shame and dishonor to the family as a Muslim that they would disown her and that her father also threatened to kill her if she dared to return home, while her fiancé also reacted angrily when he was later told about it and made the same threats against her.

6.  As a result, and after her last employment was terminated, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, and when she was without any income to repay her loan that the loan company also sent debt collectors to her home in Indonesia looking for her with threats to kill her for failing to repay her debts, A1 therefore surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 20 May 2019, the Director of Immigration (“Director”) rejected her claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his 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”).

8.  In his decision, the Director took into account of all the relevant circumstances of the claim of A1 and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from her family or her fiancé or her creditor/debt collectors, that there is no evidence of her ever been physically harmed by any of them other than just verbal threats made or heard on the phone, nor is there any real intention of any of them to seriously harm or kill her other than angry words and empty threats, that in any event these were private and personal disputes within her family or with her creditor only without any official involvement that state or police protection would be available to A1 if resorted to as well as relevant government departments and NGOs to provide support and assistance to her as a single unwed mother in Indonesia, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are also available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move 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 her.

9.  On 3 June 2019, A1 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing and proceeded to deal with her appeal on paper based on the materials and information provided by her earlier to the Director and available in the hearing bundle before the Board. On 18 October 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1], the Board accepted A1’s claims of fear of harm from her father/family and/or her fiancé and/or creditor/debt collectors for the reasons as alleged but found no reliable evidence of any real intention of any of them to seriously harm or kill her other than angry words and empty threats, and that in any event these were private and personal disputes within her family or with her creditor only without any official involvement that state or police protection would be available to A1 upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

11.  Meanwhile upon giving birth to her son on 27 May 2019 out of her relationship with the Nigerian businessman Michael in Hong Kong, A1 also raised a non-refoulement claim for her son A2, and for which she also completed a separate NCF on 25 November 2019 in which she stated that her own claim was to be adopted for her son, and that she also attended a screening interview on his behalf before an immigration officer with legal representation from DLS.

12.  By a Notice of Decision dated 20 January 2020 the Director found A2 to be of Indonesian nationality albeit born in Hong Kong, and rejected his claim on all the applicable grounds for similar reasons in that there were no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by his mother’s family or fiancé or creditor/debt collectors upon his return to Indonesia due to the absence of any past ill-treatments of him by any of his mother’s enemies or of any expressed intention of any of them to cause him any harm, that in any event his mother’s asserted problems with those persons were all private and personal matters between them without any official involvement that state or police protection would be available to A2 if needed, and that reasonable internal relocation options would similarly be available to him to move safely with his mother to other large cities in Indonesia away from her home district without any risk of being located by any of her enemies.

13.  On 3 February 2020, A1 on behalf of A2 also lodged an appeal to the Board against the Director’s decision, and for which she attended an oral hearing before the Board on 15 July 2020 together with A2’s legal representative, during which she gave evidence for A2 and answered questions raised of his claim by the same Adjudicator for the Board, and with submissions made by A2’s legal representative to the Board. On 30 October 2020 A2’s appeal was rejected by the Board which also confirmed the Director’s decision.

14.  In its decision[2], the Board similarly found no imminent threats from any of A1’s enemies directed against A2, that any such threats were originated from some private disputes between them and A1 only without any official involvement that state or police protection would be available to A2, that according to the current Indonesian law which provided that children born out of wedlock to an Indonesian mother is entitled to Indonesian citizenship and hence A2 would be entitled to a birth certificate which would allow him access to educational facilities and government services as well as support and assistance from relevant NGOs, and that he will also be able to move safely with his mother being an able-bodied adult with working experience to other areas of Indonesia away from her home district without any risk of being located by any of his mother’s enemies that A2’s claim for non-refoulement protection also failed on all the applicable grounds.

15.  On 23 July 2020 A1 filed a Form 86 for both herself and A2 for leave to apply for judicial review of only the earlier decision of the Board which dismissed her appeal, as obviously the second decision of the Board on A2’s appeal had then not yet been made, and at the subsequent hearing of the application A1 requested that it be allowed to also include A2’s case against the subsequent decision of the Board which was by then available, and upon considering the fact that A2’s claim was essentially based on the same primary facts of A1’s claim and was determined by the same Adjudicator for the Board, and for the purpose of saving time and costs, I acceded to A1’s request to allow her to include her son in the same leave application as A2.

16.  However, no ground for seeking relief was given in the Form or A1’s supporting affirmation of the same date for either case, nor was A1 able to do so at the hearing of their application.

17.  By then A1 was of course also out of time with the application as regard her own case, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

18.  As the last day of the three-month period for her to file the Form 86 for her own case fell on 18 January 2020, A1 was therefore some 6 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

19.  In A1’s case, a delay of 6 months must be considered as very substantial and inordinate, for which she at the hearing explained that it was a friend of hers who had helped her to prepare her leave application as she was then busy looking after A2 who was then just an infant barely one year old, and that she was unable to explain why her friend was late with her application.

20.  The record shows that the Board’s first decision was sent on the same day of 18 October 2019 to her then reported address without being returned through undelivered post, while putting the blame on her friend’s fault which even if true cannot be accepted as any valid justification for her such serious delay, I am not satisfied that A1 has any good reason for her serious delay.

21.  As for the merits, if any, of her intended application, as noted above that A1 has failed to put forward any proper ground for her intended challenge of the Board’s decision as regard her case, nor was she able to do so at the hearing of her applications, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by her, I do not find any reasonably arguable basis for A1 to challenge the findings of the Board as regard her own claim either, and in the absence of any good reason for her substantial delay, I refuse to extend time and accordingly dismiss her leave application.

22.  As for the Board’s decision on A2’s claim, as noted above that being a minor A2 was then legally represented by a lawyer and with evidence given by his mother based primarily on her own claim, of which the Board rejected for similar reasons, but that the Board did also go on to consider other non-refoulement bases specific to A2’s personal circumstances as mandated by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, including any risk of discrimination or persecution for being an illegitimate child born out of wedlock and out of the country to a single mother, and correctly found in accordance with relevant COI that A2 would be entitled to a birth certificate and thus access to educational facilities and government services as an Indonesian citizen upon his return to Indonesia (See [41] – [42], and [57] – [63] of the Board’s decision).

23.  However, there seems to me one glaring omission in the Board’s consideration of any underlying matters which may support potential non-refoulement bases specific to A2’s circumstances, or that which might not have been properly advanced to the Board notwithstanding the fact that A2 was legally represented in his appeal before the Board, i.e. that A2 was born to an Indonesian mother and a Nigerian father in a racially mixed relationship that he may as a result fall within a particular social group at risk of being persecuted for reasons of his race under Article 1A(2) of the Refugee Convention, which was cited by the Board in its consideration of A2’s claim under Persecution Risk as a “child born of single mother out of wedlock in Indonesia” ([58] of Board’s decision), but somehow the Board did not appear to have taken into account the obvious racial element arising from his racially mixed parentage.

24.  I am of course mindful of the fact that the Court of Appeal in Fabio Arlyn Timogan was essentially concerned with a child claimant not legally represented as required under Order 80 rule 2 of the Rules of the High Court, and which found it necessary to raise the question that in the case where the parents’ applications for leave to apply for judicial review the Board’s decision have been found to be without merit and should be dismissed, what should be the approach by the court to the minor’s leave application when, in non-compliance with the rule, he was not legally represented in the proceedings, as the same Court later elaborated further in the subsequent case of Re Jasvir Singh [2021] HKCA 53 in its decision as follows:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Tomogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;

(2)  Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. …

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

25.  In the present case of A2, as noted above that he did have legal representation in his appeal before the Board, which thus bring me to this question: If his lawyer had failed to raise any risk of fear of being persecuted by reason of his race at all or adequately or properly on his behalf, and if it is clear to the court that in the personal circumstances of A2, who was then clearly of tender age and not able to make any meaningful submissions on his own behalf, or for that matter to give any meaningful instructions to his lawyer for his claim, but that the Board should have taken such risk into consideration but somehow did not do so or adequately or properly, what then should be the court’s approach be to his subsequent leave application to apply for judicial review when he is no longer legally represented in the proceedings?

26.  To answer this question, it would be helpful to first remind myself of the guidance laid down by the UNHCR in its Handbook on Procedures and Criteria for Determining Refugee Status that while the claimant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the claimant and decision-maker, and as adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 in that high standards of fairness shall apply in the making of such determination, and that the courts shall on judicial review subject the determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met, as Li CJ explained in the Court’s decision as follows:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. It is for the Secretary to make such a determination. The courts should not usurp that official’s responsibility. But having regard to the gravity of what is at stake, the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, ex p Bugdaycay [1987] 1 AC 514 at p.531 E-G. If the courts decide that they have not been met, the determination will be held to have been made unlawfully.”

27.  Li CJ further observed that the application of high standards of fairness in the determination of non-refoulement claims mean that decision-makers should not just sit back and put the claimant to strict proof of his claim:

“53. It is for the Secretary to comply with the high standards of fairness when considering individual cases. The following observations may, however, be of assistance. First, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the Refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned. For example, in the present case, the respondent’s letter of 5 March 1999 stated that “proof documents” were available but could not be supplied due to the absence of photocopying facilities. The Secretary should obviously have looked into this.

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim. This is recognized by the policy. UNHCR may be able to supply relevant information. And published materials are available from various sources including well-respected non-governmental organizations. The Secretary should obtain any such information and materials and take them into account.”

28.  The application of high standards of fairness of course does not entitle a claimant to simply sit back and require the decision-maker to disprove the claim either, but the exercise of determining whether the claim is valid is one of ‘joint endeavor’ (See CH v Director of Immigration [2011] 3 HKLRD 101 at para 47; TK v Jenkins [2013] 1 HKC 526 at para 25), and hence in the case of A2 as a minor and with legal representation in his appeal before the Board, high standards of fairness would in my view still require the Board to take into account his personal circumstances as a child born out of a racially mixed relationship between his parents in the exercise of determining whether his claim is valid, or for the Board to at least raise the matter to A1 being his mother and his legal representative during his appeal hearing for further clarification or submissions, as well as in its assessment of the availability of internal relocation as an option to minimize or avoid such risk on the basis if it is real.

29.  In the premises, and for the given reasons, I am of the view that A2’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds or bases that the Board in its determination of his non-refoulement claim under Persecution Risk (1) failed to consider properly or at all his personal circumstances as a child born out of a racially mixed relationship of his parents and/or (2) failed to apply high standards of fairness in its determination of such risk, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

30.  Accordingly, I grant leave to A2 to apply for judicial review of the Board’s decision as regard his non-refoulement claim on the grounds as stated above, and direct that he be legally represented by the official solicitor in his application under Order 80 rule 2 of RHC and to file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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