PELAMBOYAN NUNUNG DEWI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1376/2023

[2025] HKCFI 212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1376 OF 2023

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 Applicant in open court / the Applicant being absent in open court;

The 1^st and 2^nd Applicants’ application for leave to apply for judicial

review be dismissed.                                                                             

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 33-year-old national of Indonesia who last arrived in Hong Kong on 6 July 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but upon the expiration of her last employment contract on 4 June 2021, she did not depart and instead overstayed, and on 16 August 2021 she surrendered to the Immigration Department 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 family for being a married woman having an extra-marital affair with another Indonesian man in Hong Kong and being pregnant with their child, and after having subsequently given birth to their daughter, the 2^nd Applicant (“A2”) on 16 October 2021, A1 also raised a non-refoulement claim for A2 on the same basis. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised as a Muslim in Lombok Tengah, Gubuk Dirik, Indonesia. After leaving school she went to work in Malaysia as a domestic helper until 2012 when she returned to Indonesia to marry her husband and raised a family with a daughter in Lombok Tengah, Desa Penjeruk.

3.  In 2015 she started coming to Hong Kong to work as a foreign domestic helper, during which she met and formed a relationship with another Indonesian man in 2020 in Hong Kong, and in early 2021 she became pregnant with their child, but when her mother found out about it, her mother telephoned A1 and threatened to kill her for bringing shame and dishonour to their Muslim family, and that other members of the family also made the same threats against her, and so after the expiration of her last employment in June 2021, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, and after giving birth to A2, she also raised the same claim for her, and for which she completed a Non-refoulement Claim Form (“NCF”) on 24 January 2022 jointly for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 31 May 2022 the Director of Immigration (“Director”) rejected the claims of both Applicants on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of their 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the claims of both Applicants and assessed the level of risk of harm from A1’s family upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill either of the Applicants other than some angry words or empty threats, that in any event it was a private family dispute between them only without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that illegitimate children born to an Indonesian parent would be regarded as citizens under Indonesian law and are entitled to all benefits and protection as well as supports and assistances from governmental departments and NGOs while reasonable internal relocation alternatives are also available in Indonesia with a large population of 270 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 with A2 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 them.

6.  The Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 20 March 2023 with their lawyer from DLS before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board and with submissions made by their lawyer on their behalves. On 7 July 2023 their appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found A1’s claimed problem with her family was an entirely personal matter with no reliable evidence of any real intention of any of her family members to seriously harm or kill her or her daughter A2 other than just angry words and empty threats, that it was a private dispute within her family only without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia where illegitimate children such as A2 born to an Indonesian parent are in law Indonesian citizens entitled to the same rights and benefits as well as supports and assistances from various governmental departments and NGOs, while there are also reasonable internal relocation alternatives for the Applicants to move safely to other parts of the country away from A1’s home district without any risk of being located that their claims for non-refoulement protection failed on all applicable grounds.

8.  On 9 August 2023 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just stated that she does not agree with the decision but without explaining why, nor did she put forth any proper ground for their intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

9.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

10.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

11.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claims.

12.  I am of course mindful of the fact that A2 is still a minor at the present age of 3 years old and was without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A that it would be necessary to scrutinize and examine whether her claim had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board or the Court due to lack of legal representation, as held to be essential by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and in Re Jasvir Singh [2021] HKCA 53, but the fact is that in her appeal before the Board A2 was legally represented by DLS, and that the Board had in my view properly and separately considered and determined her claim specific to her personal circumstances notwithstanding that it was based on the same set of primary facts of her mother’s claim. As such, and as I do not find any underlying matter that may support potential non-refoulement basis in A2’s claim but had not been advanced to the Board, there is no merits in her intended application that I shall treat the lack of legal representation for her in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh supra.

13.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the intended application of either Applicants for judicial review, I refuse to grant leave and accordingly dismiss their application.

14.  As the Court has recently been informed by the Immigration Department of the subsequent removal of both Applicants from Hong Kong, I therefore direct that a request be made to the Director to use his best endeavour to forward a copy of this decision together with the sealed order to the Applicants in Indonesia.

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