MARIBAWANIK NGADIMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2019/2019

[2025] HKCFI 98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2019 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 12, and the 3^rd applicant, her son, aged 10.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 25 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.  The applicants asked for a hearing. However, they were absent at the hearing on 2 December 2024. I shall deal with their application on the papers.

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.

The applicants

5.  The 1^st, 2^nd and 3^rd applicants (“the applicants”) are Indonesians. The 1^st applicant last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 11 May 2010. Her employment contract was prematurely terminated on 27 July 2010 and she had overstayed since 11 August 2010. The 1^st applicant was arrested by the police on 23 January 2011 for overstaying and she was sentenced to imprisonment of 5 days suspended for 2 years on 29 January 2011. The 1^st applicant made a torture claim on 23 February 2011, which was rejected on 22 February 2013. Her subsequent appeal was also dismissed on 15 July 2014. The 1^st applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 11 February 2014. After giving birth to the 2^nd and 3^rd applicants on 9 August 2013 and 29 April 2015 respectively, she made a non-refoulement claim on their behalf on 27 October 2017. The claims of the applicants were made on the basis that, if refouled, they would be harmed or even killed by the creditor of the 1^st applicant’s parents (“the creditor”) and the 1^st applicant’s husband due to debt dispute. The 1^st applicant further feared that the 2^nd and 3^rd applicants would face discrimination because they were born out of wedlock.

6.  According to the 1^st applicant, she married her husband in September 2001 and she gave birth to her eldest daughter in March 2003. In 2006, she returned to Hong Kong to work as a FDH in order to settle her parents’ loan to the creditor, who was powerful and had connections with the police. Meanwhile, her husband also incurred a debt and demanded the applicant to send him money, failing which he would sell her eldest daughter. In 2007, the 1^st applicant was informed by her mother that the creditor had threatened to take away their house if the loan remain unpaid. In mid-October 2012, her mother further told her that they would sell the house and farmland to repay the loan.

7.  Besides the claimed threat from her husband and the creditor, the 1^st applicant also worried that the 2^nd and 3^rd applicants would face discrimination because they were born out of wedlock from her relationship with her Nigerian boyfriend and they looked different from other Indonesian children.

8.  When the 1^st applicant last contacted her mother, she was informed that part of the proceeds from the sale of the house had been used as partial payment for the debt owed to the creditor and that her mother was planning to relocate to another province. Meanwhile, the 1^st applicant had no information as to the whereabouts of her husband.

9.  The applicants were of the view that they could not seek protection from the police because the creditor was powerful and well connected to the police. The applicants considered internal relocation not viable as well because they had no relatives/friends to rely on elsewhere and that the 1^st applicant also lacked the necessary financial capability.

10.  Details of applicants’ story can be found in paragraph 8 of the Director’s Decision dated 19 December 2017 (“the Director’s Decision”).

The Director’s Decision

11.  The Director considered the applicants’ claims 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”).

12.  By way of the Director’s Decision, the Director dismissed the applicants’ claims on Persecution risk, BOR 2 and BOR 3 risk. The 2^nd and 3^rd applicants’ claims on Torture risk were also rejected. The Director found that (i) the worry about facing discrimination was merely a speculation [15]; (ii) there was no evidence to support the claimed fear from the 1^st applicant’s husband and the creditor [16]; (iii) state protection would be available [17]-[19] and (iv) internal relocation would be viable [20]-[21].

The Board’s Decision

13.  The applicants appealed the Director’s Decision to the Board. The hearing was scheduled on 21 December 2018, for which the applicants failed to attend. As the applicant failed to provide an explanation for their non-attendance within 7 days, the appeal was determined in their absence [75]-[77].

14.  Since the applicants failed to attend the hearing, there were various matters that the Board could not clarify with the 1^st applicant, so that no findings in favour of the 1^st applicant regarding her credibility could be made [84]-[86]. The Board also could not discuss the possibility of relocation with the applicants [87]. Without further evidence, the Board was unable to make findings that the applicants would face a real risk of harm from the 1^st applicant’s husband and/or the creditor [87]-[90] as the Board found:

“87. … Had the First Appellant attended her appeal hearing, I would also have discussed the COI with her and whether it would be reasonable to expect the Appellants to relocate to another area of Indonesia, perhaps to a large population centre such as Jakarta, far from the First Appellant’s home area to avoid any potential harm from her husband and/or the loan shark, and whether or not the Appellants would face undue hardship in relocating.

89. Without further evidence from the First Appellant, the Board is unable to make a finding that either the husband or the loan shark threatened her and/or daughter and/or parents, as she claims. Therefore, the Board is unable to find the Appellant would be at risk of serious harm from her husband and/or from the loan shark, were they to be refouled to Indonesia.

90. For these reasons, the Board is not satisfied the Appellant face a real risk of serious harm from the First Appellant’s husband and/or from the loan shark, if they are refouled to Indonesia.”

15.  Meanwhile, although the Board accepted that the 2^nd and 3^rd applicants might face societal discrimination for being illegitimate children, there was no evidence indicating that they would be harmed or denied of their fundamental human rights. The 1^st applicant’s risk of facing societal discrimination as a single mother also should not amount to harm so severe as to warrant non-refoulement protection [92].

16.  Based on such findings, the Board rejected the applicants’ claim on Persecution risk, BOR 2 and BOR 3 risk. The 2^nd and 3^rd applicants’ claims on Torture risk were also rejected [27]-[46], [94]-[99]. As the 1^st applicant claimed in her Questionnaire to the Director that she would be at risk of being forced to become a prostitute by the creditor, the Board also considered whether she would face a risk of slavery or servitude under BOR 4, but found that either such risk could not be established, i.e. BOR 4(1) or that the rights concerned were not absolute and non-derogable i.e. BOR 4(2) and 4(3) [100]-[112].

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicants filed their Form 86 on 16 July 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In the 1^st applicant’s affirmation in support of their application, the 1^st applicant said that the Board had disregarded her dangerous situation. She has not raise any other specific reason to challenge the Board’s Decision.

DISCUSSION

19.  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).

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

21.  It is apparent that the applicants were not legally represented before the Board. The Court of Appeal 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 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

22.  It is clear that the Board had separate consideration of the child specific issues for the 2^nd and the 3^rd applicants as shown in the Board’s Decision §89.

23.  The reason raised by the 1^st applicant in paragraph 15 is not valid to challenge the Board’s Decision.

24.  The applicants therefore have failed to show that they have a reasonable prospect of success in their intended judicial review application.

DISPOSITION

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