IIN-HANSIYAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1819/2020

[2024] HKCFI 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1819 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 Applicants in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 1 June 2020 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 39-year-old national of Indonesia who last arrived in Hong Kong on 17 August 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 March 2020 or within 14 days of its early termination, but when her employment was terminated on 10 November 2018 after she had earlier given birth to a daughter, 2^nd Applicant (“A2”) out of her relationship with a Pakistani man in Hong Kong, she did not depart and instead overstayed, and on 27 November 2018 she surrendered to the Immigration Department and raised a non-refoulement claim jointly for herself and her daughter on the basis that if they returned to Indonesia they would be harmed or killed by her father and/or members of her family in Indonesia for bringing shame and dishonour to her family as a Muslim for having an illegitimate child born out of wedlock in Hong Kong. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised as a Muslim in Kabupaten Magetan, Provinsi Jawa Timur, Indonesia.  After leaving school she went to Singapore to work as a domestic servant before coming to Hong Kong in 2012 to work as a foreign domestic helper.

3.  While in Hong Kong she met and soon formed a relationship with a Pakistani man Ali Malik (“Malik”), and in late 2017 when she became pregnant with their child A2, she informed her family in Indonesia but was scolded by her father on the phone for bringing shame to the family in Indonesia for giving birth to an illegitimate child out of wedlock and contrary to the teachings of Islam, and warned her not to return to Indonesia or else he would kill her and her child.

4.  A1 subsequently on 8 September 2018 gave birth to A2, and as a result her employment was therefore terminated on 10 November 2018, and as she was afraid to return to Indonesia due to her father’s threats, she therefore overstayed in Hong Kong and surrendered to the Immigration Department on 27 November 2018 when she raised a non-refoulement claim jointly for herself and A2, and for which she completed a Non-refoulement Claim Form (“NCF”) on 9 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 9 May 2019 the Director of Immigration (“Director”) rejected the Applicants’ claim 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of them being harmed or killed by A1’s father or her 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 A1 or A2 other than just a moment of anger, that in any event it was a private and personal dispute between A1 and her family 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 there are governmental departments and NGOs to provide necessary supports and assistances to them as single mother and illegitimate child as well as reasonable internal relocation alternatives within Indonesia with a large population of 263 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 safely 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.

7.  A1 then lodged an appeal respectively for herself and A2 to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 19 August 2019 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 1 June 2020 their appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted A1’s evidence of fear of harm from her father or other members of her family over her having given birth to A2 out of wedlock as plausible in the circumstances of her case, but found no evidence of any of her family members other than her father had ever physically ill-treated her in the past or to have caused her any real or severe pain whether physical or mental by her father, that her last interaction of any kind with her father was over the phone of some 18 months ago that it is not accepted that there is any real intention of her father to seriously harm or kill her or her child over what was essentially a private personal dispute between the 2 of them without any official involvement that state protection would be available to both A1 and A2 upon their return to Indonesia and with necessary supports and assistances from governmental departments and NGOs for them as single mother and illegitimate child as well as reasonable internal relocation for them to move safely to other part 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.    

9.  On 14 September 2020 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date, nor was she able to do so at the hearing of their application other than confirming that she has since formally married Malik in Hong Kong, as evidenced by a copy of their marriage certificate dated 20 December 2021 issued by the Tuen Mun Marriage Registry and exhibited to her affirmation of 12 June 2023, as well as a copy of A2’s birth certificate showing Malik as the father, and hence she cannot leave her husband in Hong Kong to return to Indonesia by herself and with her daughter. 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.

10.  By then the Applicants were also out of time with their application, 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.

11.  As the last day of the three-month period for them to file their Form 86 fell on 1 September 2020, the Applicants were therefore about 13 days late with their 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.

12.  In the Applicants’ case, a delay of 13 days may not be considered as substantial and inordinate, for which A1 did not provide any explanation in the Form or affirmation, and as the record shows that theBoard’s decision was sent on the same day of 1 June 2020 to their then reported address without being returned through undelivered post, I am unable to see any good reason or justification for their delay, but given the relatively insubstantial breach, I propose to focus on the merit, if any, of their intended application.

13.  However, as noted above that the Applicants have also failed to put forward any proper ground for their intended challenge, and in the absence of any error of law 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 merits in their intended application either.   

14.  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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

15.  In the Applicants’ case, apart from the absence of any reasonably arguable basis for their intended challenge of the Board’s decision, the fact of A1’s subsequent marriage to Malik would have legitimized both their relationship and the status of their daughter A2, and hence would no longer bring any shame or dishonour to her family in Indonesia or any cause for any further risk of harm from her father or other members of her family upon their return to Indonesia, and as such I am unable to find any merits in their intended application.  

16.  Moreover, even if such risk from her father somehow still persists, the fact is that it has also been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicants’ claim 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 vJenkins & Anor [2013] 1 HKC 526.     

17.  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’ claim.

18.  I am of course mindful of the fact that A2 is a minor at her present age of only 5 years old but without legal representation in her appeal before the Board, or in these proceedings as required by Order 80 rule 2 of the RHC, and that even though based on the same set of primary facts of her mother’s claim that her non-refoulement claim must be considered separately from the claim advanced by her mother having regard to her personal circumstances before the Board, and that the Court needs to be satisfied that the Board had achieved high standards of fairness in dealing with her claim, and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board due to lack of legal representation: See Fabio Arlyn Timogan [2020] HKCA 971.

19.  For the reasons already referred to above, it is in my view that the Board did separately and properly assess A2’s non-refoulement claim including any underlying matter which might support non-refoulement ground specific to her situation then as an illegitimate child in Indonesia, and as also noted above of the subsequent legitimization of her status by the formal marriage of her parents, I am unable to find any underlying matter that may support any minor-specific non-refoulement ground in A2’s case which might not have been advanced before the Board, and as there is no merit in her intended application notwithstanding the lack of legal representation for her before the Board or in these proceedings, I shall treat such non-compliance with Order 80 rule 2 as a mere irregularity: See Jasvir Singh & Others [2021] HKCA 53 at [33].

20.  In the premises, as I am for all the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their delay, I refuse to extend time and accordingly dismiss their leave 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