RENI WIDIASTUTIK AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

(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 as her next friend of the 2^nd Applicant, 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 as her next friend of the 2^nd Applicant, 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 40-year-old national of Indonesia who last arrived in Hong Kong on 13 June 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 June 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 September 2018, she did not depart and instead overstayed, and on 26 October 2018 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 husband and/or her parents for having become pregnant from an affair with another man in Hong Kong, and upon subsequently giving birth to a daughter, the 2^nd Applicant (“A2”) on 11 March 2019, she also raised a non-refoulement claim for her daughter on the same basis to be assessed and determined jointly with her claim. They were subsequently released on recognizance pending the determination of their claims.  

2.  A1 was born and raised in a traditional Muslim family in Desa Penyangkringan, Sub-district Weleri, District Kendal, Semarang, Central Java, Indonesia.  After leaving school she married her husband and raised a family with a son in her home district.

3.  In 2006 she started to work as a domestic helper to help to support the family first in Malaysia and Singapore before coming to Hong Kong in 2010 to work as a foreign domestic helper.

4.  In about 2015 she met and befriended a Nigerian man in Hong Kong, and with whom she eventually started an affair in 2018 which subsequently led to her pregnancy with A2, but of which when she informed her parents, her father was furious and demanded her to undergo an abortion, and threatened that should she go ahead to give birth to a child, he would kill both of them if she dared to return with the child to Indonesia, and later when her husband learnt from her parents about her pregnancy in Hong Kong, he also became furious and made similar death threats against her and her child should they return to Indonesia.

5.  Due to her pregnancy her last employment was subsequently terminated on 15 September 2018, but as A1 was afraid to return to Indonesia, she therefore overstayed in Hong Kong, and on 26 October 2018 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 21 February 2019, and after giving birth to her daughter A2 on 11 March 2019, she also raised a non-refoulement claim for her on the same basis by completing a separate NCF on 28 August 2019 on her behalf, and attended screening interview before the Immigration Department for both of their claims with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 16 September 2019 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”).

7.  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 father or husband 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 either of them to seriously harm or kill them other than just angry words and empty threats, that in any event it was a private and personal dispute between A1 and her father and husband 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 support and assistance would be available from various governmental departments and NGOs to A1 and A2 respectively as single mother and illegitimate child as well as reasonable internal relocation alternatives within Indonesia with a large population of 262 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.

8.  On 30 September 2019 the Applicants lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 14 May 2020 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 11 June 2020 their appeals were dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision[1] the Board found the Applicants’ claimed fear of harm from A1’s father and husband to have arisen from some private family disputes between them over her adultery and the shame she had brought on the family without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia as well as reasonable internal relocation alternatives for A1 to move safely with A2 to other parts of the country away from A1’s home district without any risk of being located by her father or husband, and that according to relevant COI that they will receive supports and assistances from various governmental departments and NGOs for single mother and illegitimate child if needed that their claims for non‑refoulement protection failed on all applicable grounds.    

10.  On 22 July 2020 A1 filed a Form 86 jointly for herself and A2 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 her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for their intended challenge, nor was she able to do so at the hearing of their application.

11.  As such, and as regard the case of A1 that in the absence of any error of law or irrationality or procedural unfairness in her process before the Board being clearly and properly identified by her, and given what were in my view correct findings by the Board that her claimed risks of harm from her father or her husband arose from just private family disputes only that both state protection and internal relocation would be available to her upon her return to Indonesia to negate such risks as well as necessary supports and assistances from various governmental departments and NGOs to her as a single mother with a child, I do not find any reasonably arguable basis for her intended challenge of the Board’s decision, and accordingly I refuse to grant leave and dismiss her application.    

12.  As for the application of A2 as a minor still at her present age of only 7 years old and was without legal representation in her appeal before the Board, or for that matter in her present leave application for judicial review, it is necessary for the Court to adopt an enhanced standard in scrutinizing the Board’s assessment and determination of her claim, as held by the Court of Appeal in Fabio Arlyn Mitogen [2020] HKCA 971 at para 34-35 that non-refoulement claims by children even if based on the same set of primary facts are separate from the claims of their parents and need to be considered as such having regard to their personal circumstances and to see whether there are underlying matters which may support their potential minor-specific non-refoulement bases but which may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board.

13.  In its decision in dismissing the appeal of A2, it appears that the Board decided her claim together with her mother’s claim as if they were one composite claim without giving separate consideration to her personal circumstances sufficiently or at all, and hence it seems to me reasonably arguable that the Board had failed to properly consider her claim in a manner consistent with the propositions laid down in Fabio Arlyn Tioga at [34] – [35].   

14.  Furthermore, while the Board did refer to the law in Indonesia as regard citizenship of children born outside the country and the difficulties that they may face without birth registration, it did not appear to have made any specific finding as regard the nationality of A2 as an illegitimate child born outside Indonesia in its decision, and more significantly, while fully aware that her father is a Nigerian and hence she is a child with a racially mixed parentage, and for which she may fall within a particular social group at risk of persecution for reason of her race, the Board somehow failed to take that factor into account in its consideration and determination of her claim under the applicable ground of Persecution Risk in its decision to dismiss her appeal.           

15.  In the premises, and for these reasons I am of the view that A2’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds or bases as stated above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

16.  Accordingly, I grant leave for A1 as her next friend to apply on behalf of A2 for judicial review of the Board’s decision on the grounds that the Board (1) failed to consider her claim properly and separately from her mother’s claim by giving separate considerations to her personal circumstances; and/or (2) failed to make any specific findings as to her nationality or right to return to Indonesia with her mother and/or to take into account of her being born to a racially mixed parentage in its consideration of her claim under Persecution Risk, and direct that A1 shall on her behalf file and issue the originating summons within 14 days of this order and to serve a copy thereof on the Board as respondent and the Director as interested party, and also direct that A2 be represented by the Official Solicitor under Order 80 rule 2 of the RHC to continue with her 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