RESTU DWI AMBARWULAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 385/2024, [2025] HKCA 494

On Appeal From [2024] HKCFI 2285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 385 OF 2024

(ON APPEAL FROM HCAL NO 492 OF 2024)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge To (“the Judge”) dated 12 September 2024 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petitioner Office (“the Board”) dated 11 March 2024, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 5 January 2021.

BACKGROUND

2.  The 1^st and 2^nd Applicants are mother and daughter, and are nationals of Indonesia.

The 1^st Applicant’s Previous Claim

3.  The 1^st Applicant arrived in Hong Kong on 17 September 2012 to work as a foreign domestic helper. Her employment contract was terminated prematurely on 7 February 2013, and she had overstayed since 22 February 2013. On 4 September 2013, she was arrested by the police. After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on 3 March 2014 on the basis that, if refouled, she would be harmed or killed by (i) her abusive ex-husband (Gaguk Siswanto) because she had filed divorce proceedings against him, and (ii) creditors and debt collectors due to her failure to repay a loan borrowed by her ex-husband from a bank and another loan jointly borrowed by them from a loan shark.

4.  By a Notice of Decision dated 26 November 2015 and a Notice of Further Decision dated 21 February 2017 (collectively, “the Director’s Decisions”), the Director dismissed the 1^st Applicant’s non-refoulement claims with reference to all applicable risks: the risk of torture[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

5.  The 1^st Applicant appealed the Director’s Decisions to the Board. On 25 August 2017, the Board dismissed the 1^st Applicant’s appeal and confirmed the Director’s Decisions. The 1^st Applicant then sought leave to apply for judicial review. That application was refused by the Court of First Instance on 27 June 2018 ([2018] HKCFI 1353). The 1^st Applicant lodged an appeal against the decision of the Court of First Instance, and the appeal was dismissed by the Court of Appeal on 31 October 2018 ([2018] HKCA 774). Her notice of motion for leave to appeal against the decision of the Court of Appeal was also dismissed on 27 June 2019 ([2019] HKCA 706).

The 2^nd Applicant’s Previous Claim

6.  On 6 November 2017, the 1^st Applicant gave birth to the 2^nd Applicant in Hong Kong out of wedlock.

7.  By way of written significations dated 15 January 2018 and 6 September 2018, the 1^st Applicant lodged a non-refoulement claim on behalf of the 2^nd Applicant on the same basis as the 1^st Applicant’s previous claim.

8.  By a Notice of Decision dated 30 January 2019 (“the Director’s 2019 Decision”), the Director rejected the 2^nd Applicant’s non-refoulement claim with reference to all four applicable risks as mentioned above. The 2^nd Applicant’s appeal (lodged by the 1^st Applicant on her behalf) against the Director’s 2019 Decision to the Board was dismissed by the Board on 16 August 2019.

The 1^st and 2^nd Applicants’ Subsequent Claims

9.  Upon the 1^st and 2^nd Applicants’ request, the Director allowed them to make subsequent claims for non-refoulement protection on 1 September 2020. The 1^st and 2^nd Applicants’ subsequent claims were made on the same basis as the 1^st Applicant’s previous claim and, in addition, on the basis that, if refouled, (i) they would be harmed or killed by the Muslim community in Indonesia because the 1^st Applicant, being a Muslim herself, gave birth to the 2^nd Applicant out of wedlock, and (ii) they would be discriminated against by the Muslim community because of the 2^nd Applicant’s status as an illegitimate child.

10.  Details of the previous and subsequent claims of the Applicants have been summarised by the Judge at §§1-16 of the CALL-1 Form.

11.  By a Notice of Decision dated 5 January 2021 (“the Director’s 2021 Decision”), the Director assessed the Applicants’ subsequent claims and dismissed their claims with reference to all four applicable risks as mentioned above.

12.  The Applicant appealed the Director’s 2021 Decision to the Board. At the hearing before the Board on 20 August 2021, the Applicants were both legally represented.

13.  On 11 March 2024, the Board dismissed the Applicants’ appeal, and confirmed the Director’s 2021 Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§17-22 of the CALL-1 Form, as follows:

“[17] The 1^st Applicant testified before the Board. She confirmed her evidence as stated in her non-refoulement claim form and record of the screening interview. She admitted she had no updates about the loan shark who last threatened her with SMS messages in 2013 or about the debt collector whom she had not seen since 2012. She said she no longer feared they would harm her or the 2^nd Applicant, as the loan shark and BRI Bank had probably realized the security and written off the outstanding balance of the loans. She believed what her father said in the letter was true. She emphasized the specific risks that the 2^nd Applicant might be ostracized, bullied and even attacked by members of the Muslim community in her home village, discriminated against by her neighbours and the broader Muslim community in Indonesia. She feared that the 2^nd Applicant might be kidnapped.

[18] The Board had concerns about the credibility and/or reliability of a number of the 1^st Applicant’s assertions. It found significant parts of the Applicants’ subsequent claim are based exclusively on hearsay in the 1^st Applicant’s father’s letter which provided no significant detail about the context and specifics of the alleged threats from Gaguk and others but which she accepted entirely without any further discussion with her father. While noting the difficulties which a non-refoulement claimant might have in obtaining supporting evidence, the Board was unable to place full weight on the hearsay evidence. It also found her alleged fears that the 2^nd Applicant might be at risk of being kidnapped by unidentified Muslims is a speculation unsupported by any objective evidence. It placed no weight on this part of her evidence.

[19] While accepting that unmarried mothers and their illegitimate children in Indonesia have to contend with varying degrees of stigmatization and discrimination, particularly in rural area, the Board would not go so far as to conclude that the 1^st Applicant genuinely holds all of the fears she asserted. Even accepting her evidence at its highest, it found her fear of harm from members of the Muslim community in her home village or in the wider Muslim community a likely exaggeration on her part designed to bolster their claim for protection, ie their claim is not proven. In the alternative, it found even if her fear is genuine, it is not reasonable and well-founded when assessed objectively in the light of the totality of the evidence.

[20] The Board accepted there is objective country of origin information (‘COI’) about police failures and corruption in Indonesia. However, the COI also shows there are ongoing steps taken to combat corruption and to improve the effectiveness of the Indonesia police and other state authorities.

[21] While accepting domestic abuse and other forms of violence against women and children is a problem in Indonesia, the Board found there are COI showing the Indonesian authorities’ efforts in addressing the problem. The National Commission of Violence against Women have made concerted efforts to prevent all forms of such violence. The Indonesian Child Protection Commission (the ‘KPAI’) performs tasks relating to child protection. The National Commission for Protection of Children (the ‘KNPA’), which is a non-profit organization, promotes advocacy, development and protection of children’s rights and their general welfare. It steps in where children are in need of protection and are being endangered. The police operates ‘women’s desks’ to provide assistance to victims of sexual violence. The Women-Headed Households Empowerment Program provides assistance to women with children who do not have male support. The COI shows the 1^st Applicant would be able to access services provided by organisations such as PEKKA (an Indonesian civil society organization that supports women heads of household), United Nations International Children’s Emergency Fund (‘UNICEF’) and Women’s Legal Aid (Yayasan Lembaga Bantuan Hukum – APIK (‘APIK’). These organisations have assisted thousands of children to obtain birth certificates and mothers to build independence and skills to increase their income and ability to support their children in obtaining secondary and tertiary education. The Board found no evidence that the KPAI or any state or non-governmental agencies in Indonesia that deal with child protection issues, would not help a single mother of an illegitimate child as the 1^st Applicant alleged.

[22] According to the COI, there are more than six million unmarried mothers in Indonesia and any stigma and/or discrimination they and their illegitimate children may face is likely to be substantially lower in the cities than in rural areas and in either case is unlikely to put them at risk of real harm. Despite the problem is a longstanding one and despite imperfections in the laws and legal machinery in enforcing the law, the Board found on balance that Indonesia has a functioning system and machinery for protection of its citizens and prosecution and punishment of offenders. It was satisfied that reasonable state protection would be available and internal relocation feasible to the Applicants. It therefore found there was no real risk that the Applicants would be harmed by Gaguk or other members of the local Muslim community in the 1^st Applicant’s home village or the Muslim community at large.”

THE JUDGE’S DECISION

14.  On 19 March 2024, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of judicial review was given in the Form 86. In a document titled “Relief Sought” attached to the 1^st Applicant’s supporting affirmation filed on the same date, and later in her letter to the court dated 3 April 2024, the 1^st Applicant raised a total of eight grounds of judicial review centred on alleged procedural impropriety or misdirection in law, which were set out by the Judge in the CALL-1 Form.

15.  On 12 September 2024, the Judge gave his decision rejecting the eight grounds of judicial review raised by the Applicants, and refused to grant leave to the Applicants to apply for judicial review. The Judge’s analysis was fully set out at §§26-47 of the CALL-1 Form, which it is not necessary to repeat in this judgment. At §§48 and 49 of the CALL-1 Form, the Judge gave his overall conclusion as follows:

“[48] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the [Unified Screening Mechanism (‘USM’)]; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.

[49] The Board found the 1^st Applicant’s evidence not entirely credible or reliable. Its primary finding is that even accepting her evidence in its entirety she had failed to prove the factual basis in support of their claim. It went further and assumed even if she was subjectively in fear of the proscribed harm, her fear was not reasonable or well-founded. It then found in the further alternative that even if she had proved the factual basis as she alleged, on the basis of authoritative and credible COI, there was no real risk of harm; and should the risk of such harm be greater than a low one, adequate state protection and internal relocation would be available to minimize or avoid the risk. Hence, it found the Applicants were not entitled to protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding or application of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.”

THIS APPEAL

16.  In their Notice of Appeal filed on 23 September 2024, the Applicants alleged that the Judge had failed to consider the matters raised in the proceedings below and only confirmed the decisions of the Board and the Director. The Applicants gave no particulars in support of their allegations.

17.  In their 2-page written submissions lodged on 28 April 2025, the Applicants argued that the Board and the Director had failed to take into account or give proper weight to all relevant matters, or had taken into account irrelevant matters. They also alleged that the Judge failed to observe the high standard of fairness in upholding the Board’s Decision. They repeated their claimed fear of harm from the 1^st Applicant’s enemies, and also as a result of the 2^nd Applicant’s status as an illegitimate child, if they were to return to Indonesia. They challenged the availability of state protection and viability of internal relocation on the basis of COI in their case.

18.  At the hearing of the appeal, the 1^st Applicant had nothing to add to the written submissions.

DISCUSSION

The 1^st Applicant

19.  In an appeal against refusal of leave to apply for judicial review in a non-refoulement case, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

20.  The matters raised in the Notice of Appeal and the written submissions of the Applicants are vague and general, and most of them are directed at the Board’s Decision. They do not give rise to any valid ground of appeal. In any event, they are devoid of merit. The Board’s Decision, having considered all available evidence, came to the view that the 1^st Applicant’s subsequent claim was either exclusively based on hearsay matters or unsupported by objective evidence, and it was not credible at all (see §§115-120 of the Board’s Decision). In holding that both state protection and internal relocation would be available to the 1^st Applicant (as well as the 2^nd Applicant) upon refoulement, the Board plainly took into account the relevant COI, in particular in relation to the 1^st Applicant’s status as an unmarried mother with an illegitimate child (see §§121-133 of the Board’s Decision). It is well established that the assessment of evidence, COI, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case. We also consider that a high standard of fairness has been observed in the overall process of the determination of the 1^st Applicant’s subsequent claim.

21.  The 1^st Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

22.  The 1^st Applicant’s appeal against the Order has no merit, and is dismissed.

The 2^nd Applicant

23.  The 2^nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment.

24.  In the present case, the 2^nd Applicant’s subsequent claim was premised fundamentally on the 1^st Applicant’s subsequent claim. The 2^nd Applicant was legally represented before the Board. The Board did not consider the 1^st and 2^nd Applicants’ cases as a single or composite one. Although the Board did not deal with the 2^nd Applicant’s case under a separate section, we are satisfied that, in substance, the Board did consider the 2^nd Applicant’s case separately (see §§134-140 of the Board’s Decision). As mentioned above, the Board, after considering the evidence of the 1^st Applicant, disbelieved her and rejected her subsequent claim. The Board was not satisfied that the 2^nd Applicant would suffer any harm under any of the proscribed risks from the 1^st Applicant’s ex-husband, her creditors or debt collectors, or from members of the Muslim community upon refoulement. We do not see that there was any relevant minor-specific matter(s) relating to the 2^nd Applicant’s claim which the Board ought to have considered, but failed to do so.

25.  We also do not see that the Board or the Judge erred in principle or approach, and cannot see any ground to intervene in the Judge’s decision to reject the 2^nd Applicant’s application for leave to apply for judicial review.

26.  There is no viable ground of appeal against the Order raised by or on behalf of the 2^nd Applicant.

27.  The 2^nd Applicant’s intended judicial review is not reasonably arguable. So is her appeal against the Judge’s decision. Accordingly, we dismiss the 2^nd Applicant’s appeal.

28.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, Rule 2 of the Rules of High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.