ROHAYATI ROSIHAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1871/2019

[2025] HKCFI 3418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1871 OF 2019

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 and 2nd Applicants (“the Applicants”) in open court;

1.  Leave for the 1^st Applicant to apply for Judicial Review be refused;

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

3.  The 1^st Applicant, for the 2^nd Applicant as her next friend, do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A);

4.  The 1^st Applicant, for the 2^nd Applicant as her next friend, 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; and

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

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 37-year-old national of Indonesia who last arrived in Hong Kong on 11 May 2012 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 when her employment was prematurely terminated on 21 February 2013, she did not depart and instead overstayed, and on 18 March 2013 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 brother for being pregnant with a child out of wedlock and thus brought shame to her Muslim family, and upon giving birth to her daughter, the 2^nd Applicant (“A2”) on 5 August 2013 in Hong Kong, she also raised a non-refoulement claim for her on the same basis. They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in a Muslim family in Serana, West Java, Indonesia. After leaving school she worked as a domestic helper in Dubai before coming to Hong Kong in 2010 to work as a foreign domestic helper, during which she met and formed a relationship with a black Muslim man doing business in Hong Kong.

3.  Out of her relationship with her boyfriend, A1 became pregnant in November 2012, but upon learning about it her boyfriend was not happy and subsequently disappeared without any news, and when A1 later told her family in Indonesia about her situation, her family became furious about her pregnancy that her brother threatened to kill her for bringing shame to their Muslim family, and so after her last employment was prematurely terminated in February 2013, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, and subsequently surrendered to the Immigration Department and raised her non-refoulement claim for protection, and upon giving birth to A2 in August 2013, she also raised a non-refoulement claim for her on the same basis, and for which she completed a Non-refoulement Claim Form (“NCF”) jointly for both of them on 20 August 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 15 September 2015 the Director of Immigration (“Director”) rejected the Applicants’ claims on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 member of A1’s family to seriously harm or kill either of them other than angry words and empty threats uttered on the telephone, that in any event it was a private family dispute between A1 and her family only without any official involvement that state or police protection would be available to both Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that supports and assistances from governmental departments and NGOs in Indonesia are available to them as single mother and illegitimate child as well as reasonable internal relocation alternatives in Indonesia with a large population of 255 million people spread across a vast territory 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 A1’s family to locate them.

6.  On 22 September 2015 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which the Board did not hold any oral hearing and dealt with their appeal just on paper based on the materials and information provided earlier by A1 to the Director and available in the hearing bundle before the Board. On 21 March 2017, their appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision[1]the Board accepted without reservation the factual basis of the Applicants’ claims in that A1 is an unmarried mother of A2 born to a black Muslim man in Hong Kong who had since disappeared and that her brother had threatened to kick her out of the house if she returned that she is therefore likely to be ostracized by her family and would have to support herself and A2 upon their return to Indonesia, but found no threat of actual violence by her brother, while there was also nothing in the COI to indicate that either Applicants is likely to suffer violence on account of A1’s unmarried state or A2’s illegitimacy, and that supports and assistances from relevant government departments and NGOs would be available to them as well as reasonable internal relocation alternatives for A1 to move safely with A2 to other parts of the country away from her home district without any risk of being located by her family that their claims for non-refoulement protection failed on all the applicable grounds.

8.  Meanwhile on 18 May 2017 the Director in writing invited the Applicants to submit additional facts which they considered relevant to their non-refoulement claims on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response or reply from the Applicants, the Director by a Notice of Further Decision dated 18 August 2017 also rejected their BOR 2 Claim upon finding that they had failed to establish a personal and real risk of their absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon their return to Indonesia.

9.  On 23 November 2017 the Applicants again lodged an appeal to the Board against this Further Decision of the Director, but as their Notice of Appeal was filed outside the 14-days period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision[2]dated 21 June 2019 the Board refused to allow the late filing of the Applicants’ Notice of Appeal upon finding that the deadline for them to do so was 4 September 2017, that their delay of more than 2 ½ months was substantial, that A1’s explanations for the delay of not being aware of the rules and was busy taking care of A2 were not acceptable, and that there were no merits in their appeal given the Board’s earlier findings in its first decision that the Applicants did not and would not face any real and personal risk of any proscribed harms upon their return to Indonesia.

10.  On 4 July 2019 the Applicants filed their Form 86 for leave to apply for judicial review of this second decision of the Board, 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 rejects the decision as it disregarded their dangerous situations but without putting forth any proper grounds for their intended challenge, nor was she able to do so either for herself or for A2 at the hearing of their application.

11.  In the case of A1, the Board already in its earlier decision rejected her claim under all the other applicable grounds including torture risk, BOR 3 risk and persecution risk for the thorough and detailed analysis and reasoning set out in the decision upon accepting the factual basis of her case without reservation but correctly found the availability of both state protection and internal relocation to negate her claimed risk, and in the absence of any error of law or irrationality or procedural unfairness in either of her appeals to the Board or in its 2 decisions being clearly and properly identified by her, and given the fact that the Board in its second decision in refusing to allow the late filing of her notice of appeal did already take into account the merits of her claim as held to be relevant by the Court of Appeal in Re Khan Ahmed [2019] HKCA 377 and Re Qasim Ali [2019] HKCA 430 by referring to its findings in its earlier decision on A1’s other applicable grounds, and that on the factual basis of even her own case that A1’s claim simply did not engage the BOR 2 ground due to its limited scope, I do not find any merits in her intended application as regard her own claim under any of the applicable grounds.

12.  However, the same may not be said of the case of A2 who is a minor at the present age of only 4 years old and without legal representation in her appeals before the Board, and hence high standards of fairness would require that both decisions of the Board be scrutinized by the Court for any error of law or procedural unfairness, and that it would be necessary to see whether there are matters which may support potential minor-specific non-refoulement basis in her case but which the Board might have failed to consider due to her lack of legal representation, as the Court of Appeal so held in the cases of Fabio Arlyn Timogan [2020] HKCA 971, and Re Jasvir Singh [2021] HKCA 53.

13.  Given the fact that the Board had dealt with the earlier appeal of both applicants on paper without any oral hearing, and in accepting the factual basis of their claims without reservation, one can only assume that the Board would have heavily relied on the Director’s decision of 15 September 2015 as regard any relevant personal situation of A2, in which the only disclosed information was that her father was a 30-year-old black Muslim businessman in Hong Kong without any reference at all as to his nationality or citizenship or any other relevant backgrounds (see [6.6] of the Director’s first decision), and hence it is not at all clear that when A2 was stated to be of Indonesian nationality whether this is the true legal position or that it was just based on the information disclosed by A1 in her NCF or by virtual of her own nationality, or whether it would be accepted as such as a refoulee by the Indonesian authorities, or that whether such matters would have any bearing on A2’s non-refoulement claim specific to her personal circumstances as such, including any risk of persecution on account of her race, religion or nationality upon her return to Indonesia.

14.  As it appears that these matters had not been properly considered or at all by the Board in its first decision when it came to the conclusion that internal relocation was viable to A2 that her appeal should be dismissed, it is in my view reasonably arguable that there may be non-refoulement grounds relating specifically to her nationality but not advanced to the Board due to lack of legal representation on her behalf: See Novi Azizah & Ors v Torture Claims Appeal Board, CACV 289/2021 [2021] HKCA 1910; and Dian Lestari & Anor v Torture Claims Appeal Board, CACV 192/2024 [2025] HKCA 39.

15.  As such, it follows that in refusing to allow the late filing of A2’s notice of appeal as regard her BOR 2 claim, it seems to me also reasonably arguable that the Board failed to take account or at all those matters personally and specifically relating to her non-refoulement claim in its second decision either.

16.  In the premises, and for these reasons I am of the view that A2’s intended application for judicial review of not just the second decision but also as of necessity the first decision of the Board is reasonably arguable on the grounds that the Board (i) failed to make proper inquiry as to her nationality in its consideration of her non-refoulement claim and/or the availability of internal relocation to her upon her return to Indonesia; and (ii) failed to separately and adequately consider her non-refoulement claim specific to her personal circumstances as an illegitimate child born to a black Muslim father outside Indonesia, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  Accordingly I dismiss A1’s leave application as regard her own claim, but grant leave to her to apply on behalf of A2 as her next friend for judicial review of both decisions of the Board on the grounds stated above, and direct that she shall file and issue the originating summons for A2 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, and that the Official Solicitor shall represent A2 in her pursuing application under Order 80 rule 2 of the Rules of the High Court.

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