YANTI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2174/2019

[2024] HKCFI 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2174 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 the 1st and 2nd Applicants (“the Applicants”) being absent in open court;

1.  Leave to amend Form 86 to include the 1^st Applicant’s son, Hussain Imtiaz Safyan as the 2^nd Applicant be granted;

2.  Leave for the Applicants to apply for Judicial Review be granted;

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

4.  The Applicants do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

5.  The Applicants 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.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 41-year-old national of Indonesia who last arrived in Hong Kong on 4 August 2009 to work as a foreign domestic helper until the expiration of her employment contract on 4 August 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 29 March 2010, she did not depart and instead overstayed, and was arrested by police almost 2 ½ years later on 12 September 2012. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband and/or his creditor for failing to assist him to repay his debts, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

1^st Applicant’s Claim

2.  A1 was born and raised in Desa Grogol, Sub-district Kapetakan, District Cirebon, Province Java Barat, Indonesia. After leaving school she married her husband Adam who was a farmer, and raised a family with a son in her home district, but during the marriage her husband would indulge in alcohol and when drunk would become abusive and beat her at will almost every day, and in order to get away from his abuses and to help out in the support of their family, A1 in 2009 came to Hong Kong to work as a foreign domestic helper.

3.  In 2010 her husband borrowed a loan from a local loan shark which he relied on A1’s monthly remittances from Hong Kong to help him with his repayments, but in 2011 when A1 discovered that her husband had spent the loan on other women, she was furious and stopped remitting any money to him, and as a result he made threats against her and her parents, and on several occasions he even came with the loan shark to demand her parents for money and damaged their household items, and that he also threatened to kill A1 or sell her into prostitution when she returned to Indonesia.

4.  As a result A1 changed her telephone number and ceased all contacts with her husband, but when her last employment was terminated on 29 March 2010, she was afraid to return to Indonesia, and so she overstayed in Hong Kong, and was subsequently arrested by police some 2 years later on 12 September 2012, for which she was subsequently convicted and sentenced to prison for 2 months.

5.  Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised her torture claim and was released on recognizance pending the determination of her torture claim, and after it was rejected, she then sought non-refoulement protection, and for which she completed a Supplementary Claim Form (“SCF”) on 24 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 23 November 2018 the Director of Immigration (“Director”) rejected A1’s claim on all the remaining applicable grounds other than torture risk including risk of her 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 A1’s claim and assessed the level of her being harmed or killed by her husband or his creditor upon her 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 her other than to press her for money to pay off her husband’s debts or that they would still have any adverse interest in her after all these years since she ceased any contact in 2010, that in any event it was a private domestic or monetary dispute between them without any official involvement that state or police protection would be available to A1 if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 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 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 her husband or his creditor to locate her.

8.  On 5 December 2018 A1 lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 10 May 2019 before the Board during which she gave oral evidence and revealed that during her stay in Hong Kong she had formed a relationship with a Pakistani man who was also a non-refoulement claimant, that with whom she gave birth to a son, the 2^nd Applicant (“A2”) on 30 December 2018, and for which she also feared of being harmed or killed by her husband if refouled to her home country. On 18 July 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found inconsistencies and discrepancies in A1’s evidence as to threats of harm from her husband or his creditor that it doubted her claim of fear of harm from them that caused her to overstay in Hong Kong and to seek non-refoulement protection, and that in any event any such risk arose from a private domestic or monetary dispute between them without any official involvement that state or police protection as well as internal relocation will be available to A1 upon her return to Indonesia, that it is not accepted that her husband would find out about her relationship with the Pakistani man and her given birth of a child given their lack of contact for years, and that she can relocate to other areas of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 31 July 2019 A1 filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief is given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision without putting forward any proper ground for her intended challenge, nor did she attend the subsequently scheduled hearing of her application without any explanation.

11.  A1 did however by a summons dated 22 October 2020 apply as next friend for her son A2 to be included as an applicant in her leave application for judicial review, for whom she had also raised a non-refoulement claim on the same basis but which has similarly been rejected by the Director and the Board as follows.

2^nd Applicant’s Claim

12.  As noted above A2 was born to A1 on 30 December 2018 while she was being released on recognizance pending the determination of her own claim, during which she formed a relationship with a Pakistani man who was then also seeking non-refoulement protection in Hong Kong, and that on 14 May 2019 A1 raised a non-refoulement claim for A2 to the Director on the same basis of fear of being harmed or killed by A1’s husband or his creditor, and for whom she completed a Non-refoulement Claim Form (“NCF”) on 29 August 2019 through her lawyer from DLS, and for which she also attended a screening interview for A2 with her lawyer before an immigration officer.

13.  By a Decision dated 29 October 2019 the Director also rejected A2’s claim on all the applicable risks upon finding no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by A1’s husband or creditor if deported to Indonesia after finding no evidence of such intention of either of them, and that similarly state protection and internal relocation will be available to him in Indonesia that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

14.  On 12 November 2019 A1 without further legal representation from DLS lodged an appeal for A2 to the Board against the Director’s decision, and for which she attended an oral hearing on 24 April 2020 on behalf of A2 before the same Board during which she also gave evidence and answered questions raised of A2’s claim by the same Adjudicator for the Board, during which she also raised an addition risk of A2 being harmed or killed by her husband due to her extra-marital affair with the Pakistani man that led to the birth of A2. On 27 May 2020 A2’s appeal was dismissed by the Board which also confirmed the Director’s decision.

15.  In this decision the Board as before found A1’s evidence given on behalf of A2 inconsistent implausible and unconvincing that it doubted her claim of fear of harm from her husband or his creditor, and that there is no evidence that her husband or his creditor even knew about A2 let alone to have any intention to harm or kill him for whatever reason, and that similarly any such risk arose from a private domestic or monetary dispute between his mother and her husband without any official involvement that state or police protection would be available to A2 upon his return to Indonesia as well as reasonable internal relocation for him to move safely with A1 to other part of the country away from her home district without any risk of being located by her husband or his creditor that A2’s claim for non-refoulement protection also failed on all the applicable grounds.

16.  A1 never filed any Form 86 separately for A2 for leave to apply for judicial review of this decision of the Board, but as noted above on 22 October 2020 she applied to include A2 in her own leave application for judicial review.

17.  Given their relationship and that the factual bases of their claims are the same and were determined by the same Adjudicator albeit separately, and in order to save time and costs for A1 to pay another set of court fees for a separate Form 86 for A2, I allowed A1 to include A2 in her leave application as the 2^nd Applicant.

18.  Similarly and as also noted above, A1 also failed to put forward any ground for A2’s intended challenge of the Board’s decision, but given the seriousness of the issues at hand in which their life and limbs were said to be at stake, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for rejecting their respective claims.

Consideration of Board’s Decision on A1’s Appeal

19.  As noted above the Board rejected A1’s claim mainly on its adverse findings of inconsistencies and contradictions in her evidence essentially due to her failure to mention any physical harm from her husband in her SCF to the Director until her evidence given in her appeal hearing before the Board when she claimed to have been repeatedly kicked and punched by him when she was pregnant in 2001, and that in 2011 he also threatened to kill her or sell her into prostitution when she failed to remit money to him, of which the Board did not consider credible, and concluded that A1 had failed to establish that her husband had threatened her as alleged, as it elaborated in the decision as follows:

“50. The Appellant’s evidence as to the past harm she claims to have suffered is inconsistent and contradictory. The only physical harm she claims to have suffered was at the hands of ADAM, but her evidence on this is wildly inconsistent. She made no mention in the TCF of having suffered any physical harm and confirmed at Answer 15 of the first interview (at page 66 of the HB) that her husband had never harmed her. At Answer 48 of the same interview, however, she claimed to have been slapped once by Adam (at page 69 of the HB). The Appellant made no mention of any physical harm in the SCF, but by the time of the second interview her evidence had changed again, and she claimed (at Answer 14, at page 119 of the HB) to have been slapped “almost every day”. There was no mention of having suffered any physical harm in the Notice, but the Appellant revised her evidence once more at the Hearing, claiming for the first time that ADAM had kicked and punched her repeatedly when she was pregnant with her son in 2001. The Appellant was asked by the Board at the Hearing why she had failed to mention these repeated assaults at either of the interviews, or in the TCF or the SCF. It was pointed out to the Appellant that she had been assisted by a lawyer both at the interviews and in completing the TCF and the SCF. The Appellant’s response was that she thought she had mentioned her husband’s attacks on her. I do not consider that a credible explanation. In the light of the various inconsistencies and contradictions, I find the Appellant has failed to establish by reliable evidence that she was ever physically harmed by ADAM.

51. The Appellant’s evidence as to the alleged threats made against her is similarly inconsistent. She alleges ADAM threatened her over the phone on three occasions between February and April 2011. According to the Appellant’s initial evidence at the Hearing, ADAM said if she did not give him the money, he would beat her up and give her to the loan shark. She said she surmised ADAM would give her to the loan shark and the loan shark would sell her as a prostitute, though ADAM did not say this. Later in the Hearing, she changed her evidence to say ADAM threatened to kill her once in April 2011, and told her he would give her to the loan shark and the loan shark would sell her as a prostitute. Both versions are at odds with the Appellant’s earlier account of the alleged threats at the first interview, where she said (Answer 9, at page 66 of the HB) ADAM told her he would ask her to marry the loan shark if she did not repay the loan. Prior to that, she had said at Answer 7 of the same interview (at page 66 of the HB) she did not know what her husband meant when he said he would “surrender” her to the loan shark, and “perhaps” her husband would give her to the loan shark so that the loan shark could marry her.

52. Other than these differing accounts of three direct threats in 2011, the Appellant’s only evidence of any other threats against her is hearsay, allegedly relayed to her by her mother. The Appellant claims her mother told her at some unspecified date ADAM came to her parents’ house and threatened to beat the Appellant up and sell her as a prostitute, or even kill her, if the Appellant did not pay ADAM’s debt. The Appellant claimed at the Hearing her mother told her when she last spoke to her in September or October 2018 that ADAM still comes to the Appellant’s parents’ house to ask for the Appellant’s phone number. There is no suggestion he threatens the Appellant, however.

53. Having considered all the evidence, I find only that on three occasions between January and April 2011, ADAM demanded over the phone that the Appellant repay the debt he owed. In the light of the various inconsistencies and deficiencies in the Appellant’s account of ADAM’s threats against her, I do not consider the Appellant has established by reliable evidence that ADAM threatened her on any of those occasions, or that he subsequently uttered any threats against her.”

20.  The basis of A1’s claim to the Director as set out in her SCF and in the Director’s decision was clearly that of threats from her husband and/or loan shark made to her in early 2011 over her refusal to pay off his loan, and not of domestic abuses by him during the marriage prior to her departure of Indonesia in 2009, hence I fail to see why A1’s failure to mention them in her claim or SCF could be fatal to or so undermined the credibility of her claim of threats from her husband made in 2011 over her refusal to pay his loan, or why her explanation subsequently given at the hearing before the Board for such omissions would be considered as so incredible or illogical by the Board in its consideration of the credibility of such threats.

21.  Furthermore, given the fact that those threats were made over the phone on 3 separate occasions in 2011 of what her husband would do to her, and that she just repeated them as uttered by him to the Director in support of her claim, I fail to see why it should be for her to explain to the Board of the different versions of threats as uttered by her husband on the phone on those separate occasions, which were described by the Board as inconsistencies but in my view all threats were of a similar nature and with one objective, i.e. that he would harm her in various ways should she fail to pay him money, or why her failure to do so should render all such threats incredible to the Board, or why some of them made to A1’s mother in Indonesia which were then relayed by her to A1 in Hong Kong should simply be brushed aside and rejected as mere hearsays.

22.  Whilst it may be open to the Board to find no real intention of her husband to carry out such threats against A1 or that they do not amount to any real risk to her due to the availability of state protection or internal relocation to her upon her return to Indonesia, but to reject their credibility simply on the basis that A1 was unable to explain the different accounts of those 3 direct threats uttered by her husband as inconsistent and/or being hearsays seems to me irrational or Wednesbury unreasonable under the circumstances.

23.  As for A1’s claimed fear of being harmed or killed by her husband because she has had a child by another man in Hong Kong, the Board also considered that there are no substantial grounds for believing that she would be at such risk from her husband at [56]:

“The second limb of the Appellant’s case is that she fears ADAM will harm her because she has had a child by another man in Hong Kong. The Appellant has had no contact with ADAM since the child was born and she has put forward no basis for her assertion in the Notice (at page 29 of the HB) that “there is possibility he will kill me.” Indeed, the Appellant failed to mention her pregnancy in the SCF in October 2018 or at the second interview (Question 32, at page 120 of the HB) if she had any other information that she would like to have taken into consideration in assessing her case and she said that she did not. It was only in the Notice in December 2018 that she first mentioned her pregnancy and asserted that there was a “possibility” ADAM would be angry and a “possibility” ADAM would kill her. In all the circumstances, I do not consider there are substantial grounds for believing the Appellant would be at real risk of harm from ADAM because of the child she has had by another man in Hong Kong.”

24.  For the same reasons as noted above, it seems to me entirely possible that the Applicant did not mention her pregnancy in her SCF because at that time the risk of possible threats from her husband over her having a child from a relationship with another man in Hong Kong might not have arisen or occurred to her to be probable, but having subsequently given birth to the child and given her husband’s violent and abusive behaviour towards her during their marriage and his threats over their monetary dispute, it seems to me also irrational or Wednesbury unreasonable for the Board to find no substantial grounds for believing that the Applicant would be at any real risk of harm from her husband if he were to find out about her having a child by another man in Hong Kong under the circumstances.

25.  The Board of course did go on to consider in its decision that had the Applicant been able to show any real risk of being harmed by her husband due to their monetary dispute or her extra-marital affair with another man, such risk would be confined to the local area of her home district, and that internal relocation to another part of Indonesia would mitigate or remove such risk ([71] – [77] of Decision).

26.  While the Board’s finding that such risks of harms from her husband to be confined to A1’s home district was in my view entirely correct, but in its determination that they could be avoided if A1 were to relocate to another place in Indonesia, and that there were no circumstances that would make it unreasonable or unduly harsh for her to do so, it seems to me that the Board failed to take into account of the fact that A1 could very well be burdened by her new born child, A2 who was born to a Pakistani man in Hong Kong, and to therefore make the necessary enquiries as to whether the Pakistani man could or would accompany A1 to return to Indonesia or that she would be on her own, in which case the Board should then conduct the necessary or relevant COI assessment for any potential financial or underlying racial or religious risks to which A1 and/or her child may be exposed in those other locations in Indonesia, which thus also bring me to the Board’s decision on A2.

Consideration of Board’s Decision on A2’s Claim

27.  In this decision the Board identified A2 as a national of Indonesia born on 30 December 2018 and hence a minor now aged 5, that he was without legal representation and appeared before the Board by his mother A1 who is an Indonesian national while his father is a Pakistani national who was also a non-refoulement claimant in Hong Kong (see [30] of the Decision).

28.  The Board then proceeded to find that A2’s claim was premised fundamentally on the claim of his mother A1, and upon considering the same evidence as presented by A1 for A2 which it had earlier rejected as not credible in its determination of her claim due to the various inconsistencies and discrepancies in her evidence as noted above, plus the fact that A1 has had no direct contact with her husband since April 2011 and none whatsoever since 2014 that her husband would not have known the existence of A2, and concluded that there are no substantial grounds for believing that A2 would be at real risk of harm from A1’s husband either because his mother had refused to pay her husband’s debts or because of the circumstances of his birth out of her relationship with another man ([61] – [63] of the decision).

29.  The Board further proceeded to consider those COI referred to by the Director in his decision that show reforms have been made to improve the situation in Indonesia as to corruption within the police and the government to conclude that even if A2’s claimed risks were real that state protection as well as reasonable internal relocation would similarly be available to him upon his return with his mother to Indonesia that it concluded that his claim for non-refoulement protection also failed on all the applicable grounds ([64] – [66], [80] – [89] of the decision).

30.  Given the fact that A2 is a minor and was without legal representation in his appeal before the Board, and for that matter also in his leave application for judicial review now before me as his earlier application for Legal Aid has been refused, the Court of Appeal held in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board [2020] HKCA 971 at [34] that the following principles shall apply in cases of child claimants:

(1)  Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(2)  Even if the claims were 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 though they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of a parent’s claim that the children’s claims could be dismissed without further consideration of their personal situations; and

(3)  Ill-treatment which does not reach the level of persecution in the case of an adult may do so in the case of a child.

31.  In Re Jasvir Singh [2021] HKCA 53, the same Court of Appeal went on to elaborate what the applicable high standard of fairness requires in such a case depends on the facts of that case as follows:

“31. … the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] – [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that that may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] – [53], [56] – [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80 rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

32.  In the present case, as noted above the Board was clearly aware that A2 is a child of mixed race and ethnicity and hence with possible underlying racial or even religious matters specific to him if refouled with his mother to Indonesia, but which the Board did not appear to have taken into account or consideration when it determined that A2 would not face any real risk of persecution, or to have referred to the relevant COI in its determination that internal relocation would be available to A2 other than those that only related to police conduct and effectiveness or organizations that assist women (see [84] – [88] of decision), or even to verify whether A2 in his particular situation would still be considered as a national of Indonesia with the right to enter or remain and be entitled to all the rights and privileges as such in Indonesia if refouled with his mother to Indonesia.

Dispositions

33.  In the premises, and for the reasons given, I am of the view that the Applicants’ intended application for judicial review of both decisions of the Board is reasonably arguable on the grounds that (1) the Board’s reasons for rejecting A1’s claim on credibility is irrational or Wednesbury unreasonable; (2) the Board failed to take proper or adequate account or consideration of A1’s situation as a single mother with a small child in its assessment and determination of the availability of internal relocation to her; (3) the Board failed to take into account properly or adequately any underlying matters specific to A2 as a minor of mixed race without legal representation in assessing his persecution risk; and (4) the Board failed to conduct properly or adequately the relevant COI in its assessment that internal relocation is available to A2 upon his refoulement to Indonesia with A1, thereby meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

34.  Accordingly, I grant leave to the Applicants to apply for judicial review of both decisions of the Board on the grounds as stated above, and direct that they shall file and issue the originating summons within 14 days of this decision and to serve a copy thereof together with all the relevant documents on the Board as respondent and Director as interested party, and that A2 shall be represented by the Official Solicitor to continue with his judicial review 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