ANI NUR AINIAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1192/2020

[2024] HKCFI 2292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1192 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

Introduction

1.  This is an application by Madam Ani Nur Ainlah (“A1”) on behalf of Mr Binod Hardika Vallen (“A2”) (together the “Applicants”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 11 March 2020 (the “2020 Board Decision”) when the Board affirmed the decision of the Director of Immigration (the “Director”) dated 10 May 2019 (the “2019 DOI Decision”) in refusing A2’s claim for non-refoulement protection (the “A2 Claim”).

Background of the Applicants

2.  A2 is a boy born on 16 June 2017. A1 is A2’s mother.  A1 signed the claim form for A2.

3.  A1 had raised a non-refoulement claim herself in 2013 (the “A1 Claim”).  The basis of the A2 Claim was based on the A1 Claim with additional information added to the A2 Claim. 

4.  A1 was born on 28 August 1985. She was raised in an Islamic family in Indonesia.  She worked as a house maid in Indonesia from 2003 to 2005 and came to work in Hong Kong as a domestic helper in 2007.  Her employment was terminated on 20 February 2011 and her visa to stay in Hong Kong expired 14 days after termination of her employment.

5.  A1 did not leave Hong Kong after expiration of her visa and overstayed in Hong Kong.  She was arrested by police on 4 April 2012 and referred to the Immigration Department on 8 April 2012 for investigation.  On 11 April 2012, A1 was convicted of the offence of breach of condition of stay by overstaying in Hong Kong.

6.  On 30 April 2012, a removal order was made against A1.  In May 2012, A1 lodged a refugee application to the United Nations High Commissioner for Refugees (the “Refugee Application”).  She was released on recognizance on 2 June 2012.  The Refugee Application was rejected subsequently but A1 failed to report to the Immigration Department for answering recognizance.  She had absconded since 31 December 2012 until arrested by police on 19 June 2013.  She lodged the A1 Claim on 24 June 2013.

7.  On 16 June 2017, A1 gave birth to A2 out of wedlock.  A2’s father is a Hindu Nepalese non-refoulement claimant. A1 and A2’s father have no martial relationship.

8.  A2 has never been to Indonesia.

Procedural history of the A1 Claim

9.  By decisions dated 26 June 2015 and 1 November 2016 (together the “DOI A1 Decisions”), the Director refused the A1 Claim.  A1 appealed to the Board but did not attend the hearing before the Board.  By a decision dated 28 March 2018 (the “2018 Board Decision”), the Board affirmed the DOI A1 Decisions. 

10.  On 4 May 2018, A1 applied for leave for judicial review against the 2018 Board Decision in HCAL 784/2018 (the “A1 JR”).  On 8 April 2021, the Court of First Instance (“CFI”) refused A1’s leave application (the “JR Decision”) ([2021] HKCFI 925). 

11.  On 28 April 2021, A1 applied to CFI for time extension to appeal against the JR Decision out of time (the “Time Application”).  The Time Application was refused by CFI on 13 July 2021 ([2021] HKCFI 1993).  A1 then applied to the Court of Appeal (“CA”) on 27 July 2021 for the time extension.  On 11 November 2021, CA refused A1’s time extension application ([2021] HKCA 1653).  On 28 January 2022, CA also refused to grant leave for A1 to appeal to the Court of Final Appeal ([2022] HKCA 160).  The A1 Claim was thus concluded.

The A2 Claim

12.  In the A2 Claim, A2 referred to the A1 Claim.

13.  In the A1 Claim, A1 claimed that she was in fear of being harmed or even killed by (a) A1’s family members and other Muslims because of her sexual orientation as a lesbian; and (b) an unknown moneylender (the “Creditor”) because of non-repayment of a loan by A1’s father.

14.  In December 2018, A1 was told by her friend that A1’s family came to know A2’s birth and viewed the Applicants as a shame to the family as A2 was born out of wedlock and A1 had an intimate relationship with a Hindu man.  They vowed to kill the Applicants if they returned to Indonesia.

15.  A2’s father was arrested by police in mid or late 2017 after the birth of A2 and was detained in Lai Chi Kok Reception Centre.  In early March 2019, A1 visited A2’s father at Lai Chi Kok Reception Centre.  A2’s father said that he would soon be deported to Nepal after serving his sentence and could not take care of the Applicants.

16.  On behalf of A2, A1 claimed that if A2 were returned to Indonesia, A2 would be harmed or even killed by A1’s family and the Muslim community in Indonesia because A2 was born out of wedlock and A2’s father was a Hindu.

Procedural history for the A2 Claim

17.  By a written signification dated 10 January 2019, A1 lodged the A2 Claim on behalf of A2. 

18.  The Director had considered the A2 Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights, Cap. 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

19.  By the 2019 DOI Decision, the Director refused the A2 Claim.  The Applicant later filed an appeal/petition to the Board (the “2019 Appeal”).  By the 2020 Board Decision, the Board affirmed the 2019 DOI Decision.  The Board rejected and dismissed the 2019 Appeal.

20.  On 15 June 2020, A1 filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the 2020 Board Decision.  Both A1 and A2 were named as applicants on the Form 86 and both the Board and the Director were named as the proposed respondents and interested parties in the Form 86.

21.  As the A1 Claim had been concluded as aforesaid and the 2020 Board Decision, being the relevant decision specified in the Form 86, only concerns the A2 Claim, A1 should not be named as one of the applicants in the Form 86.  A1 should be applying on behalf of A2.  I shall deal with this application on such basis.

22.  A1 filed the supporting affirmation on 15 June 2020 (the “Supporting Affirmation”).

23.  On 4 July 2024, A1 filed another affirmation applying to withdraw this intended judicial review application (the “Withdrawal Application”).

24.  As the A2 Claim also relied on matters referred to in the A1 Claim, I shall also set out below briefly the subject matter of the A1 Claim.

The A1 Claim

25.  In the A1 Claim, A1 claimed that if refouled, she would be harmed or killed by the Creditor over her father’s debt and/or by her family and the Muslim community for her homosexuality.  The Director had considered the A1 Claim on all applicable grounds under the USM. 

26.  By the DOI A1 Decisions, the Director rejected the A1 Claim.  The Director assessed the level of risk of harm from the Creditor or A1’s family or the Muslim community upon A1’s return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them.

27.  The Director found that there was no real intention of A1’s family to harm or kill A1 over her homosexuality. There was also no evidence of any threats from the Muslim community or the Creditor (who had never met A1) to harm her.  The matters alleged by A1 were private or family disputes without any official involvement.

28.  The Director was of the view that state or police protection would be available to A1 if resorted to.  Objective country of origin information (“COI”) showed that reasonable internal relocation alternatives were available in Indonesia with a large population spreading across a vast territory of more than 1.8 million sq. km. and it would not be unduly harsh for A1 as an able-bodied adult with working experience to move to other part of Indonesia away from her home district where it would be difficult, if not impossible, for her perceived enemies to locate her.

29.  The DOI A1 Decisions were affirmed by the Board.  In the absence of any oral evidence from A1 to clarify, explain or establish her claims due to her failure to attend the hearing before the Board and on the basis of the materials previously provided by A1, the Board doubted her claim of her alleged sexual orientation or of her fear of harm from her parents or the Muslim community or the Creditor upon A1’s return to Indonesia.

30.  The Board agreed that in the absence of any official involvement, state or police protection would be available to A1 if needed.  There was reasonable internal relocation for A1 to move safely to other area away from her home district without any risk of being located.  Thus, A1’s claim for non-refoulement protection failed on all applicable grounds under the USM.

31.  In the A1 JR, A1 only repeated her fear of harm from the Creditor or the Muslim community over her alleged homosexuality but without putting forward any proper ground for her intended challenge and she did not request an oral hearing for her application.  CFI found that in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in the 2018 Board Decision being clearly and properly identified by A1, there was no reasonably arguable basis for A1’s intended challenge.

32.  In the A1 JR, CFI found that it had been established by both the Director and the Board in their respective decision that the risk of harm in the A1 Claim was a localized one and that it was not unreasonable or unsafe for A1 to relocate to other part of Indonesia, there was simply no justification to afford her with non-refoulement protection in Hong Kong.

33.  CFI refused A1’s leave application in the A1 JR.

The 2019 DOI Decision

34.  The Director had also considered the A2 Claim on all applicable grounds under the USM.

35.  After carefully assessed the A2 Claim, including minor-specific non-refoulement grounds, the Director considered that the A2 Claim was not substantiated. 

36.  The Director revisited the facts of the A1 Claim and considered the additional information submitted for the A2 Claim.

37.  The Director found that there were no substantial grounds for believing that A2 would have real chance of facing real and personal risk from A1’s family and the Muslim community in Indonesia because he was born out of wedlock and his father was a Hindu.

38.  A1 learned from her friend that A1’s family members threatened to kill the Applicants because the Applicants caused shame to the family.  This was merely hearsay information with no further details or evidence to substantiate.  There was no indication that A1’s family members were government official or acting in official capacity.  There was no past ill-treatment on the Applicants and A1 had ceased to contact her family since 2010.  There was nothing to show that A1’s family member had a real intention to materialize the death threat against the Applicants.

39.  Objective COI showed that Hinduism is an official religion in Indonesia and there is no explicit ban on interfaith marriage under the Marriage Law of Indonesia.

40.  There was no indication of any government officials being involved in the family dispute between A1 and her family as alleged.  The Applicants were not targets of the Indonesian government.  The Director did not accept that the Indonesian authorities were unwilling to, or would refuse to, offer the Applicants reasonable and necessary assistance and protection against the threats from A1’s family if there was such need upon A2’s return to Indonesia.  The Director’s aforesaid view was supported by COI.

41.  The Director was of the view that there was no basis for believing and no concrete and objective evidence to show that A2 would face any foreseeable, real and personal risk of harm from A1’s family and the Muslim community upon A2’s return to Indonesia.  The Director opined that A2’s feared treatment was unlikely to materialize.

42.  A2’s perceived risk from A1’s family members, even if not non-existent, was a localized problem.  The Director considered that internal relocation alternatives were reasonably available which would further lower or negate the perceived risk.  The possible places for relocation were the Hindu communities in Indonesia such as Denpasar in Bali or Medan City in North Sumatra.  COI showed that there were non-governmental organizations and private companies providing assistance and job opportunities for single mother in Indonesia.

43.  For the reasons set out in the 2019 DOI Decision, the Director did not accept that A2 would face a real and personal risk of being subjected to ill-treatment prohibited by BOR 3 upon his return to Indonesia.  The Director also found that A2 failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Indonesia.

44.  The Director did not accept that there would be a real and personal risk of A2 being persecuted for the reason of his race, religion, nationality, membership of a particular social group or political opinion upon his return to Indonesia.  Coupled with the availability of reasonable state protection in Indonesia and viable option of internal relocation alternative, the Director did not accept that A2’s fear of any persecution risk was well-found.  The Director assessed that A2’s case did not warrant non-refoulement protection on the ground of persecution risk.

45.  The Director also did not accept that there were substantial grounds for believing that A2 would be subjected to torture by the A1’s family and the Muslim community as claimed upon his return to Indonesia.  There were no substantial grounds to believe that the feared actions would be inflicted by or at the instigation of or with the consent or acquiescence of a public official or any person acting in an official capacity. 

46.  Upon taking into account relevant COI and the asserted primary facts of A2’s case, the Director assessed that the Indonesian government would provide reasonable state protection to the Applicants and there were internal relocation alternatives available to the Applicants.

47.  For the reasons set out in the 2019 DOI Decision, the Director rejected the A2 Claim.

The 2020 Board Decision

48.  A1 attended the hearing before the Board on behalf of A2 but declined to give evidence.

49.  The Board also revisited the facts of the A1 Claim.  The Board noted that A1 did not make the Refugee Application until she was arrested by the police.  The Board was not satisfied that A1 was a genuine protection seeker.  The Board was of the view that the information provided by A1 was not truthful and reliable.

50.  From the history of A1’s communication with her father in 2009 and 2010, the Board was of the view that A1’s father’s anger against A1 due to her sexual orientation had subsided and it was unlikely that he would ill-treat A1 upon her return to Indonesia.  A1’s family members also would not have the resources to look for her all over Indonesia.

51.  The Creditor had never seen A1. He would have difficulty to identify A1 and there was nothing to show that he had the resources to locate A1 all over Indonesia if A1 returned to Indonesia but did not go back to her home village.

52.  If A1 was born a lesbian, nothing happened to her in Indonesia up to 2007 when she left to work in Hong Kong at the age of 22.  When she returned to Indonesia, nobody would know that she was lesbian unless she unnecessarily exhibited her lesbian openly in the public. There had been nothing to indicate that she was or would be personally targeted by Muslims for being a lesbian upon her return to Indonesia.  COI indicated that lesbians, in general were tolerated.  There was no systematic violence against them.

53.  COI showed that state protection and avenues for assistance were available in Indonesia.  This would lower or negate the level of the perceived risk.

54.  Internal relocation is permissible in Indonesia which would further lower or negate the perceived risk of harm. So long as A1 relocated to areas other than her home village, she could avoid the perceived risk of harm.  Modern urban area of Jakarta and greater metropolitan areas of Bogor and Depok were available options.  A1 was a young person with local and overseas working experience.  The Board was of the view that it would not be unduly harsh for her to relocate and to earn a living in a place other than her home village in Indonesia.

55.  The Board was of the view that the risk of ill-treatment claimed by A1 was unlikely to materialize upon her return to Indonesia.  Hence, there were no substantial grounds for believing that A1 would be subjected to torture upon her return to Indonesia.

56.  A1’s alleged problems were entirely personal and private in nature without any official involvement.  A1’s feared actions by her family, the Creditor and other Muslims would not be inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  Her case fell outside the ambit of “torture” as defined in the Ordinance.  Thus, she would not face any torture risk upon her return to Indonesia.  She also did not face a genuine and substantial risk of subjected to BOR 3, BOR 2  or persecution risk.

57.  The Board was of the view that the threat against the Applicants from A1’s family was hearsay from A1’s friend but there was nothing to show the circumstances as to how A1’s family learnt about A1’s intimate relationship with A2’s father, as well as the making of the death threat.  Upon learning the alleged threat, Al should be alarmed and worried about the personal safety of herself and A2.  She could obtain her friend’s phone number to ascertain the threat in details but A1 did not do so.  The Board found this unbelievable.  The Board regarded the additional information provided for the A2 Claim not reliable and attached no weight to it. 

58.  For reasons stated in the 2020 Board Decision, the Board found that A2 had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the 2019 DOI Decision and dismissed the 2019 Appeal.  

Legal principles applicable to judicial review

59.  In a judicial review, the court does not step into the shoes of the decision makers.

60.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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”.

61.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

62.  A1 on behalf of A2 did not advance any grounds for his intended judicial review in the Form 86.  In the Supporting Affirmation, A1 only exhibited the 2020 Board Decision.

63.  The A2 Claim had been considered separately from the A1 Claim by the Director and the Board.  In the 2019 DOI Decision and the 2020 Board Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the A2 Claim and the 2019 Appeal. 

64.  A1 on behalf of A2 did not provide any particulars or specifics as to how the Board had erred in the 2020 Board Decision in affirming the 2019 DOI Decision, or in what way was the 2020 Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

65.  Having rigorously examined the 2020 Board Decision, the 2019 DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

66.  I see no underlying matter which may support any minor-specific non-refoulement grounds which had not been considered and dealt with by the Director and the Board.

67.  The Board found that A1’s evidence was not reliable for reasons set out in the 2020 Board Decision.  The Board formed the view that the alleged threats or harms feared by the Applicants were localized and private issues.  They were not acquiesced to by government authorities.  COI suggested that reasonable state protection was available and internal relocation was a real possibility for the Applicants in Indonesia.  It was on such basis that the Board found that A2 had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court on a judicial review will not interfere save when such findings involved errors of law, procedural unfairness and irrationality.  In this case, the court does not detect any error of law in the 2020 Board Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The 2020 Board Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The 2020 Board Decision is without fault.  The proposed judicial review has no realistic prospects of success.   

The Withdrawal Application

68.  A1 filed the Withdrawal Application on 4 July 2024 stating that A1 wanted to return back to Indonesia and did not want to follow up this case.

69.  There is no evidence to show that A1 on behalf of A2 made the Withdrawal Application other than out of her own volition.

70.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

71.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

72.  In the premise and having considered the 2020 Board Decision and the 2019 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the A2 Claim, and as I am not satisfied that the Applicants’ intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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