DEWI AISYAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1420/2021

[2025] HKCFI 170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1420 OF 2021

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 Applicant in open court / the Applicant being absent in open court;

The 1^st and 2^nd Applicants’ application for leave to apply for

judicial review be dismissed.

Observations for the Applicant:

1.  The 1^st Applicant (“A1”) is a 40-year-old national of Indonesia who last arrived in Hong Kong on 13 June 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 June 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 19 August 2013, she did not depart and instead overstayed, and more than 1 year later on 22 August 2014 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 former husband over her subsequent remarriage in Hong Kong and/or by her family’s creditor over her family’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.  While overstaying in Hong Kong, A1 married a Pakistani man by the name of Fiaz in September 2013 in an Islamic ceremony, and subsequently gave birth to their children, a son on 28 October 2014, and a daughter on 26 August 2018, and for whom A1 also raised a non-refoulement claim on the same basis as hers.

3.  A1 was born in Village Kemuning Sarilor, Sub-district Panti, Jember Regency, East Java, Indonesia. After leaving school she married her first husband Karim and raised a family with 2 children in her home district.

4.  During the marriage Karim was violent and abusive towards her, and so in 2009 the Applicant divorced him, and to made her own living and also to assist her family with their repayment of loans previously borrowed from some local money-lender for her father’s medical expenses, she applied to work as a foreign domestic helper in Hong Kong.

5.  In late 2010 she came to Hong Kong to start her first employment, during which she met Fiaz who was also a non-refoulement claimant and subsequently married him under an Islamic ceremony in September 2013 after her last employment contract was prematurely terminated, but as she was afraid to return to Indonesia due to threats from her former husband who was still furious at her for divorcing him, and from her family’s creditor over her family’s debts, and so she overstayed in Hong Kong and raised her non-refoulement claim for protection, she therefore raised her non-refoulement claim for protection, and upon giving birth to her son on 28 October 2014, she also raised a similar claim for him, and for which she completed a Non-refoulement Claim Form (“NCF”) on 20 September 2017 jointly for both of them, and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 27 October 2017 the Director of Immigration (“Director”) rejected the claims of both A1 and her son 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 their claims and assessed the level of risk of harm from A1’s former husband Karim or her family’s creditor upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from either of them, that there is no evidence of any real intention of her former husband to seriously harm or kill A1 or her son or any evidence of any threats from her family’s creditor against them at all, that in any event these were private disputes between A1 and her former husband and her family’s creditor only without any official involvement that state or police protection would be available to both A1 and her son if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in Indonesia to protect women and children and with support and assistances from various governmental departments and NGOs, while reasonable internal relocation alternatives are also available within Indonesia with a large population of 258 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 with her son 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 6 November 2017 A1 for herself and her son lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 attended 2 oral hearings on 29 October 2018 and 7 November 2018 before the Board during which she gave evidence for herself and her son and answered questions raised of their claims by the Adjudicator for the Board. On 3 April 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies discrepancies and exaggerations in A1’s evidence that it doubted the credibility of her claim of fear of harm from her former husband or her family’s creditor that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any intention or reason of her former husband to harm let alone to kill her given A1’s own concession of his willingness to end their marriage and to their subsequent divorce, nor is there any evidence of any threats from her family’s creditor against A1 or her son, and that in any event these were private disputes between them without any official involvement that state or police protection would be available to A1 and her son upon their return to Indonesia as well as reasonable internal relocation alternatives for them to move safely to other parts 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.

10.  A1 and her son never sought any legal challenge to the court of the Board’s decision by way of judicial review or otherwise, and meanwhile on 26 August 2018 A1 gave birth to her daughter, the 2^nd Applicant (“A2”), and for whom A1 also raised a non-refoulement claim on the same basis as her own claim, and for which A1 also completed a NCF on 10 May 2019 for A2 and attended another screening interview before an immigration officer with the same legal representation from DLS.

11.  By a Notice of Decision dated 25 July 2019 the Director also rejected A2’s claim on all the applicable grounds upon assessing the level of risk of harm from A1’s former husband and/or her family’s creditor upon her return to Indonesia as low due to the absence of any past ill-treatment from either of them, that there is no evidence or indication at all of either of them to even know of the existence of A2 let alone to have any intention to harm her, that in any event these were private and personal disputes between them only without any official involvement that state or police protection would be available to A2 if so required as well as reasonable internal relocation within Indonesia will similarly be available to her to move with her mother to other areas away from her mother’s home district without any risk of being located by either A1’s former husband or her family’s creditor.

12.  On 2 August 2019 A1 together with A2’s father Faiz lodged an appeal for A2 to the Board against the Director’s decision, and for which both of them did respectively on 27 May 2021 and 14 July 2021 attend before the Board during which A2’s father Fiaz was unable to give any evidence for A2 given his own concession of not knowing anything about A1’s claimed risks to A2, and hence only A1 at the second hearing gave evidence for A2’s claim and appeal and answered questions raised of her claim by the same Adjudicator for the Board. On 12 August 2021 A2’s appeal was dismissed by the Board which also confirmed the Director’s decision.

13.  In this decision the Board again found inconsistencies discrepancies and exaggerations in A1’s evidence for A2 that it rejected the credibility of her claim of risks to A2 from her former husband or her family’s creditor that it did not accept that A2 will face any such risk upon her refoulement with her mother to Indonesia, that in any event state protection and reasonable internal relocation will similarly be available to her if resorted to in Indonesia, and that relevant COI show that A2 being a child born to an Indonesian mother is also to be treated as a citizen entitled to all the rights benefits and protection under the law of Indonesia and with help and support from various governmental departments and NGOs that it concluded that A2 will not face any real risk as claimed by her mother, nor is there any underlying matters which may be specific to her own personal circumstances that may amount to any non-refoulement basis under any of the applicable grounds.

14.  On 11 October 2021 A1 filed a Form 86 for A2 only to seek leave to apply for judicial review of this decision of the Board of 12 August 2021, but no ground for seeking relief was given in the Form or in A1’s supporting affirmation of the same date to which she just attached a copy of the Board’s decision but without putting forth any proper ground for A2’s intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in A2’s process before the Board or in its decision being clearly and properly identified by A1 on her behalf, I do not find any reasonably arguable basis for A2’s intended challenge of the Board’s decision.

15.  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: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  I am of course mindful of the fact that A2 being a minor at her present age of 6 years old is not legally represented in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, nor was she in her appeal before the Board, and that it would therefore be necessary to scrutinize and examine whether her claim had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness required in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, as held to be essential by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, in that non-refoulement claims by children are separate claims from similar claims advanced by their parents that decision-makers should consider each claim by reference to the personal circumstances of each claimant, that even the claims are based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately, and that it does not necessarily follow from the dismissal of the parents’ claims that the children’s claims could be dismissed without further consideration of their personal situations, as ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

17.  In the present case of A2, it is clear that her claim had been considered and determined separately from her mother’s claim due to the circumstances as noted above that the latter was considered earlier in time instead of at the same time with A2, and that the same Adjudicator did separately consider the personal circumstances specific to A2 as a child born to an Indonesian mother and a Pakistani father in Hong Kong who has never been to Indonesia by analyzing the relevant COI properly, and correctly arrived at the conclusion that A2 will not face any real or substantial risk under any of the applicable grounds upon her refoulement with her mother to Indonesia. As such, I do not find any error of law or procedural unfairness in the process of A2’s claim by the Board or in its decision for there to be any reasonably arguable basis to challenge its findings notwithstanding the lack of legal representation for her under Order 80 rule 2 of RHC in these proceedings, and of which I shall therefore treat as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh supra.

18.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in A2’s claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate with her mother to other part of Indonesia with full assistance and support from various governmental departments and NGOs, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises, and 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 A2’s claim.

20.  For all these reasons I am not satisfied that there is any prospect of success in A2’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

21.  The Court has recently been informed by the Immigration Department that both A1 and A2 have subsequently been removed from Hong Kong, and accordingly I also direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to A1 for A2 in Indonesia.

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