LUSY MERI MARIA BERTOLES AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

HCAL 1445/2018

[2021] HKCFI 1456

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1445 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 44-year-old national of Indonesia who first arrived in Hong Kong in 1998 with permission to work as a foreign domestic helper until the expiration of each of her 2-year employment contract or within 14 days of its early termination, but when her last employment contract was prematurely terminated on 28 February 2007, she did not depart and instead overstayed and was arrested by the police on 4 November 2007. 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 the Indonesian authorities for being involved in illegal guns selling activities in the past, and upon given birth to her children, the 2^nd and 3^rd Applicants (“A2” & “A3”) respectively in November 2007 and February 2011 out of a relationship with a man in Hong Kong, she also raised a similar claim on the same basis for each of them, and after their torture claims had been rejected, they then sought non-refoulement protection on the same basis as before, and for which they were jointly assessed by the Immigration Department, and were also released on recognizance pending the determination of their claims.

2.  A1 was born and raised in Desa Debela, Palau Roti, Indonesia. After leaving school she came to Hong Kong in 1998 to work as a foreign domestic helper, and upon the completion of her contract in 2000, she returned to her home in Indonesia where she married her husband, and later started her illegal business trading in guns, but in 2001 when  she heard that the police were investigating such activities in her home district and fearing that they would eventually come after her, she therefore left Indonesia to return to Hong Kong to resume her job as a foreign domestic helper.

3.  In 2007 after her husband passed away in Indonesia, the Applicant started a relationship with a man in Hong Kong and soon became pregnant with A2, which led to the early termination of her last employment in February 2007, and as she feared that she would be arrested by the Indonesian police for her previous illegal guns selling business, she therefore did not depart for Indonesia and instead overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, and upon the birth of A2 and later A3, she also raised a similar claim for each of them , and for which she completed a Supplementary Claim Form (“SCF”) jointly for the 3 of them on 8 January 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 31 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

5.  In his decision the Director took into account all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the Indonesian authorities upon their return to Indonesia as low due to the absence of any past ill-treatment from them, that in the absence of any evidence that A1 was actually being pursued by the Indonesian police or authorities other than her bare assertion and speculation that it is doubtful that her claimed fear is real or substantial, that even if it is true that A1 was being pursued by the police that it would be their proper investigation and any resultant prosecution would be lawful in their legal system that A1 would not be considered as a refugee but rather a fugitive from justice not entitled to non-refoulememnt protection, that state or police protection would be available to the Applicants if resorted to from any other harm, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move with her children to other parts of Indonesia away from her home district such as Jakarta where it would be difficult if not impossible for any other perceived enemies of hers to locate them.

6.  The Applicants then lodged their appeals to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which A1 attended an oral hearing on 30 April 2018 before the Board during which she confirmed the information previously supplied to the Director but declined to give any further evidence or to answer any question from the Adjudicator for the Board despite being invited to do so. On 28 May 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found A1’s refusal to answer questions raised of her claim undermined her credibility to establish her claimed fear of harm from the Indonesian authorities over her alleged gun dealings, that other than her own bare assertion and speculations that there is no evidence of her being pursued by the police all these years, and that in any event if it is true that she is indeed being pursued by the police over any crime which she may have committed many years ago that any such resultant police investigation and/or prosecution would be legal and valid under the systems in Indonesia, and that according to reliable COI that her children A2 and A3 although being born out of wedlock are Indonesian citizens and would enjoy the same rights and protections as any other Indonesian citizen and with no evidence that they would suffer any stigma or discrimination for being born outside the country or out of wedlock, and with various organizations available to help them to settle and adjust to the society upon their return to Indonesia that their claims for non-refoulement protection failed on all applicable grounds.    

8.  On 23 July 2018 A1 filed a Form 86 for herself and her children for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in A1’s supporting affidavit of the same date she merely stated that she rejected the decision as it disregarded their dangerous situation but without providing any particulars or elaboration how it was so or put forward any other ground for their intended challenge, nor did she request any oral hearing for their application. As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by A1, I do not find any reasonably arguable basis for her intended challenge.

9.  However, as her children A2 and A3 who are both minors (now aged 13 and 10 respectively) and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether their claims had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are 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 their appeal before the Board, as the proper approach for which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that 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.

10.  Those specific or personal circumstances of A2 and A3 relevant to their claims as stated in A1’s SCF and recorded in the Director’s decision [9.35], include the facts that they received their education in Hong Kong since their birth here, and that they can speak only Cantonese and English, for which A1 fears that they will face discrimination upon their return to Indonesia, that it will be difficult for them to adapt to the new living environment, and that no one will take care of them if she is arrested or imprisoned in Indonesia as she had not contacted her family for years.

11.  In his decision the Director did specifically deal with such risks or concerns of A1 regarding A2 and A3 at §§25 – 28 including consideration of the relevant COI that her children will be accepted as citizens of Indonesia and entitled to all the rights and protections under the law, and while they may face some community stigma as such, the Director found that there are various NGOs to provide supports and assistance for her and her children if needed upon their return to Indonesia.

12.  As noted above, at her appeal hearing before the Board, A1 declined to give further evidence or to answer questions from the Adjudicator regarding her claim or those of her children who had been excused from attending the hearing, and the Adjudicator therefore proceeded to consider their claims on the basis of the evidence and materials before the Board, and on rejecting A1’s claim upon which the claims of A2 and A3 were primarily based, the Adjudicator did similarly go on to consider those concerns of A1 specific to A2 and A3 relevant to their claims, and of which he agreed with the Director’s findings and assessments for the reasons stated in paragraphs 41 – 43 of the Board.

13.  Having considered them as well as those of the Director in his decision 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 considerations and assessments of the claims of A2 and A3 either. In this respect I also note that they were only 10 and 7 when their appeal came before the Board, and given the fact that they were both born and raised in Hong Kong and have never lived in Indonesia, I do not find this a case where they by themselves could have given any view or evidence in relation to their mother’s concerns about any possible discrimination or difficulty which they may face in Indonesia, or even to give any meaningful instruction of such to a lawyer if one were assigned to represent them in their proceedings before the Board or in their application now before me. For these reasons I do not find any merits or reasonably arguable basis for A2 or A3 to challenge the finding of the Board either.     

14.  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.

15.  In the Applicants’ case, the Board rejected their claims essentially on its correct findings on their failure to establish their claims for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 43 of its decision based on the evidence and materials available before the Board and in the absence of any further oral evidence or answers from A1 when she declined to explain or clarify questions raised of her claim during the appeal hearing, and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board. 

16.  In the premises, and having found no arguable merits in the intended application of A2 and A3 notwithstanding the absence of legal representation for them in the process before the Board or in these proceedings which I shall treat as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave 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