ITA NURYATIN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3472/2019

[2024] HKCFI 1483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3472 of 2019

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 1st and 2nd Applicants being present in open court at the hearing on 19 February 2024 and 1st to 4th applicants being absent at the hearing on 22 May 2024;

1.  Leave for the applicants or any of them to apply for Judicial Review against the Board’s Decision be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the applications of the 2^nd applicant, the 3^rd applicant and the 4^th applicant a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 7; the 3^rd applicant, her son, aged 5; and the 4^th applicant, her son, aged 3. They applied to the Director for the status of refugees at different times. When rejected, they appealed to the Boards. By order of the Court, they made this application jointly.

2.  The applicants apply for leave to apply for judicial review of the Decisions respectively dated 13 September 2019 (A1 & A2), 17 November 2023 (A3 & A4) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, different constituted (“the Board’s 1^st Decision and the Board’s 2^nd Decision respectively”). Their joint application relies upon the facts of the 1^st applicant.

3.  The 1^st applicant appeared before the Court on 19 February 2024 and the Court granted leave to join the 3^rd and the 4^th applicants as the applicants in this action.

4.  The Court recalled the 1^st applicant to appear before it for her application for legal representation and for clarification whether she had other children. However, she was absent on 22 May 2024. In the circumstances, the matter proceeded on the existing evidence before the Court.

5.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicants

6.  The applicants are nationals of Indonesia. The 1^st applicant had been working as a foreign domestic helper in Hong Kong from 2001 to 2002 and from 2007 to 2016.  When the 1^st applicant’s employment contract was pre-maturely terminated on 28 October 2016, she did not leave Hong Kong and overstayed since 12 November 2016. The 1^st applicant surrendered to the Immigration Department on 16 November 2016. The 2^nd, 3^rd and 4^th applicants born respectively in Hong Kong on 8 May 2017, 11 February 2019 and 9 August 2020 were children of the applicant.

7.  The 1^st applicant made a non-refoulement claim by written representations respectively dated 13 December 2016 and 11 July 2017 on behalf of herself and the 2^nd applicant, her daughter. By written representation dated 30 April 2019, she made non-refoulement claims on behalf of the 3^rd applicant. By written representation dated 12 December 2020 and 3 December 2021, the 1^st applicant made non-refoulement claim for the 4^th applicant. The claims were made on the basis that, if refouled, the 1^st, 2^nd, 3^rd and 4^th applicants (“the applicants”) would be harmed and killed by the ex-husband of the 1^st applicant due to a land dispute. The 1^st applicant also feared that the 2^nd, 3^rd and 4^th applicants would not be accepted by the family because they were born out of wedlock.

8.  According to the 1^st applicant, she got married with her ex-husband in 2001 and she gave birth to her eldest son in Indonesia in 2003.  Since 2002, her ex-husband started physically abusing her by punches and kicks, hitting her with a broomstick and throwing objects at her.  There were occasions when the applicant escaped to her parents’ home to avoid her ex-husband, but he would come to force her home by yelling at her parents and threatening to harm their son.

9.  Between 2003 and 2006, there were six occasions when the 1^st applicant was admitted to hospital due to the assault from her ex-husband. Although she had made complaints to the police, they regarded the matter as a family dispute and told her to deal with it herself.  The 1^st applicant believed that the police refused to assist because her ex-husband’s paternal uncle was a policeman.  The village chief also refused to assist when the 1^st applicant reported the matter to him, probably because her ex-husband’s father was a staff member in the village office. In 2005, the 1^st applicant found out that her ex-husband was a drug addict and had affairs with other women.  For the sake of her son, the applicant returned to Hong Kong to work as a domestic helper in 2007.

10.  In 2010, the 1^st applicant’s father purchased two pieces of land using the money the 1^st applicant earned in Hong Kong. One piece of land was registered under the name of the 1^st applicant’s father while no legal owner was named for another piece of land (“unnamed piece of land”) because the 1^st applicant intended to pass the ownership of the land onto her eldest son when he grew up. In 2011, when the applicant returned to Indonesia, she found out that her ex-husband was living with another woman (“the woman”) who was expecting his child. The 1^st applicant’s brother then told her that the woman’s family brought along the police forcing her ex-husband to marry her.  The 1^st applicant’s father also told her that her ex-husband had sold the unnamed piece of land to his sister.

11.  The 1^st applicant divorced her ex-husband in early 2012. She subsequently found out from her father that her family was brought to the police station in around 2011 because her ex-husband found out that she was remitting money to them, while the money remitted to support their son was just barely sufficient. The police scolded the 1^st applicant’s father, kept going to her family home and threatening her family members.

12.  On 22 December 2013, the 1^st applicant stayed at her aunt’s home when she returned to Indonesia. Meanwhile, her ex-husband was not happy about the 1^st applicant wanting the custody of their eldest son and he assaulted her when she returned home. Her ex-husband believed that he could force their son to transfer the land to him if he retained custody. Subsequently, he also went to the 1^st applicant’s home many times to abuse her and threaten her family members. The 1^st applicant reported the matter to the police, but again no action was taken by them. They even told the 1^st applicant that she would not be granted custody of their eldest son because her ex-husband was the one who cared for him while she was in Hong Kong.

13.  The 1^st applicant did not maintain contact with her ex-husband since changing her phone number in 2015.  However, the 1^st applicant’s family told her that her ex-husband often came to their house, demanding the piece of land registered in her father’s name.

14.  In around 2015, the 1^st applicant became pregnant with the 2^nd applicant and married a Pakistani (“Mr Khan”) in Hong Kong under Islamic marriage. In around May 2020, the 1^st applicant’s mother informed her that her ex-husband’s mother came to enquire whether the 1^st applicant had given birth to three children in Hong Kong.  The 1^st applicant guessed that her eldest son in Indonesia might have informed her ex-husband and her parents about her having children in Hong Kong. She expressed concern that she would not be accepted by her family for having children born out of wedlock, i.e. the 2^nd, 3^rd and 4^th applicants. The applicants were of the view that they could not seek protection from the police because the uncle of the 1^st applicant’s ex-husband was a policeman. They also considered internal relocation not viable because they had no relatives elsewhere in Indonesia and had insufficient money for relocation.

15.  Details of the applicants’ stories can be found in paragraph 6 of the Director’s Decision dated 22 August 2018 (“the Director’s 1^st Decision”), paragraph 7 of the Director’s Decision dated 12 November 2019 (“the Director’s 2^nd Decision”) and paragraph 8 of the Director’s Decision dated 10 May 2022 (“the Director’s 3^rd Decision”).

The Director’s 1^st Decision

16.  The Director considered the 1^st and 2^nd applicants’ claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

17.  By way of the Director’s 1^st Decision, the Director dismissed the 1^st and 2^nd applicants’ claim. The Director found that the future risk of being seriously harmed or killed by the 1^st applicant’s ex-husband would unlikely materialise. In any event, the Director failed to understand why the 1^st applicant’s ex-husband would still be interested in her given that the land in dispute was registered in her father’s name and that their marriage was already dissolved. Meanwhile, the Director also considered that it was merely the speculation of the 1^st applicant that her family would not accept her and the 2^nd applicant [11]-[14].  

18.  Furthermore, (i) state protection would be available to the 1^st and 2^nd applicants upon their return [15]; (ii) internal relocation would be viable [16]-[17] and (iii) their case failed to meet any of the requirements under BOR 2 and BOR 3 risk [18]-[23], Persecution risk [24]-[27] or Torture risk [28]-[30].

The Director’s 2^nd Decision

19.  The Director considered the 3^rd applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

20.  By way of the Director’s 2^nd Decision, the Director dismissed the 3^rd applicant’s claim. The Director found that the low intensity of past ill-treatment received by the 1^st applicant indicated a small future risk of harm upon the 3^rd applicant’s return to Indonesia.  In any event, the Director was of the view that the birth of the 3^rd applicant should not concern the 1^st applicant’s ex-husband given that she had already divorced with him in 2012. In the meantime, the Director also considered that it was merely the speculation of the 1^st applicant that her family would not accept the 3^rd applicant [13]-[15].

21.  Furthermore, (i) state protection would be available upon the 3^rd applicant’s return [16]-[20]; (ii) internal relocation would be viable [21]-[25] and (iii) the 3^rd applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[31], Persecution risk [32]-[36] or Torture risk [37]-[40].

The Director’s 3^rd Decision

22.  The Director considered the 4^th applicant’s claim in relation to the following risks:

a.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

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

23.  By way of the Director’s 3^rd Decision, the Director dismissed the 4^th applicant’s claim. The Director found that the low intensity of past ill-treatment by the 1^st applicant ex-husband indicated a small future risk of harm upon the 4^th applicant’s return to Indonesia. The Director also noted that the 1^st applicant’s father did not exhibit a real intention to seriously harm or kill the 4^th applicant. In any event, the 1^st applicant’s ex-husband and father lacked the capability to locate the 4^th applicant nationwide in Indonesia [13].

24.  Furthermore, (i) state protection would be available upon the 4^th applicant’s return [14]-[18]; (ii) internal relocation would be viable [18](sic)-[19](sic) and (iii) the 4^th applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20](sic)-[25](sic), Persecution risk [29](sic)-[33](sic) or Torture risk [34](sic)-[37](sic).

The Board’s 1^st Decision

25.  The 1^st and 2^nd applicants appealed the Director’s 1^st Decision to the Board. On 21 January 2019 and 7 May 2019, the Board conducted oral hearings.

26.  Regarding the 1^st applicant, the Board considered aspects of her evidence regarding harm suffered at the hands of her ex-husband relatively persuasive and plausible in light of the country of origin information (“COI”). The Board accepted that (i) she was physically abused by her ex-husband, after which she sought treatment of one form or another [52]-[53]; (ii) she had sought assistance from the police on at least on one occasion, but did not receive an adequate response to her complaint [54]; (iii) when she returned to Indonesia in 2011, she found out that her ex-husband was living with the woman who was expecting his child and that the woman’s family forced her ex-husband to marry her and (iv) she divorced her ex-husband in 2012 or 2013 [55].

27.  Yet, there were discrepancies in the 1^st applicant’s evidence regarding events that happened from 2007 onwards [56], regarding (i) the land dispute [57]-[62]; (ii) whether she suffered any physical abuse from her husband when she returned to Indonesia in 2011 [64]-[67]; (iii) her family’s attendance at the police station in around 2011 [69]-[70]; (iv) her last contact with her ex-husband and whether she was assaulted by her ex-husband when she returned to Indonesia in December 2013 [71]-[75].

28.  The Board found that the 1^st applicant was the victim of physical abuse at the hands of her ex-husband from 2002 until 2007. They accepted that she used the money earned in Hong Kong to buy two plots of land, but did not accept that her ex-husband sought to harm the applicant due to any ongoing land dispute. They also accepted that when the 1^st applicant returned home in 2011, she might have suffered further physical abuse from her ex-husband, but this did not continue after she moved to live with her family. The Board also accepted that the 1^st applicant’s father did attend the police station and probably the association office after her ex-husband made a complaint. However, the Board considered that the 1^st applicant had no further contact with her ex-husband since about 2013 after the divorce, so it did not accept that she was assaulted when she returned to Indonesia in December 2013 [76].    

29.  In any event, the Board noted that the physical abuse on the 1^st applicant took place during the course of the couple’s marriage, which had already ended in around 2013. Since then, her ex-husband had no contact with the 1^st applicant and he had only minimal contact with her family [78]. Although there might still be a small risk of some verbal threats or physical assault from her ex-husband, the Board considered that this did not amount to a real risk [81]. Furthermore, state protection would also be available [82]-[83].

30.  The Board then proceeded to evaluate the risk of the 1^st applicant being rejected by her family. They noted that Mr Khan could join her and her children in Indonesia at some stage in the reasonably foreseeable future, so that she would not be regarded as a single mother. Furthermore, it was the 1^st applicant’s evidence that her family was aware of her marriage with Mr Khan and was supportive to the union [86]-[89].

31.  The Board were therefore not satisfied that the 1^st applicant would face any real risk for returning to Indonesia [90].

32.  As to the 2^nd applicant, the Board found that she is a national of both Indonesia and Pakistan by virtue of descent, so that her claim would be considered against both countries [33]. Based on the same reasoning and findings as to the 1^st applicant, the Board was satisfied that if the 2^nd applicant goes to Indonesia, she would not face harm at the hands of the 1^st applicant’s ex-husband and family [99]-[100]. Meanwhile, the Board found a lack of evidence indicating any ongoing adverse interest against Mr Khan due to his previous political involvement and that it had been almost two decades since his departure from Pakistan [103]. The Board therefore considered that the 2^nd applicant would not be at risk if she goes to Pakistan [105].  

33.  Based on such findings, the Board concluded that the 1^st and 2^nd applicants’ cases failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [11]-[27], [106]-[109]. They therefore dismissed the 1^st and 2^nd applicants’ appeal and confirmed the Director’s 1^st Decision.

The Board’s 2^nd Decision

34.  The 3^rd and 4^th applicants appealed the Director’s 2^nd and 3^rd Decisions to the Board. On 30 June 2021 and 30 May 2023, the Board conducted oral hearings for the appeal by the 3^rd and 4^th applicants respectively. On this occasion, the 3^rd and the 4^th applicants were legally represented by a duty lawyer.

35.  Given that the 3^rd and 4^th applicants were minor, the Board applied the principle laid down in Fabio Arlyn Timogan and others v The Torture Claims Appeal Board/Non-refoulement Claims Petition Office with the Director of Immigration as interested party (CACV 32/2020) and took into account their personal circumstances when considering their claims [20].

36.  The Board found that the 3^rd and 4^th applicants had never set foot in Indonesia since birth, so that the risk of harm by the 1^st applicant’s ex-husband or her family was merely speculative. In any event, the level of injuries suffered by the 1^st applicant from the assault by her ex-husband was not serious as well [52], [59], [68].

37.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or persecution risk [10]-[19], [51]-[74]. Furthermore, state protection and internal relocation were also available according to the COI [28]-[49], [75]-[84].

38.  The Board therefore dismissed the 3^rd and 4^th applicants’ appeal and confirmed the Director’s 2^nd and 3^rd Decisions.

Application for leave to apply for judicial review of the Board’s Decision

39.  The applicants filed Form 86 on 22 November 2019 for leave to apply for judicial review of the Board’s Decisions.

40.  In the 1^st applicant’s affirmation in support of the joint application, she did not raise any specific ground for herself or for her children.

DISCUSSION

41.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

42.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me on 19 February 2024, the 1^st applicant confirmed that she understood the Board’s Decision. However, she said she did not agree with the Board, though she could not tell me what was wrong with the Board.

43.  Before the Board for the appeal of the 1^st applicant and the 2^nd applicant, the applicants were not legally represented. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

44.  It is clear that the Board had separate assessment of the cases of the 1^st applicant and the 2^nd applicant respectively. The issue of lack of separate assessment of the minor because of no legal representation for the 2^nd applicant does not arise.

45.  Also, it is clear that the 3^rd and the 4^th applicant were legally represented before the Board, which had made separate assessment of their case apart from their mother, the 1^st applicant.

46.  For the reasons given by the Boards above, the Boards found that the applicants will not be subjected to realistic risk of being harmed or killed by the 1^st applicant’s father or her ex-husband if they return to Indonesia or Pakistan.

47.  The 1^st applicant has not raised any valid reason to challenge the Boards’ Decisions.

48.  The applicants fail to show that their intended judicial review of the Boards’ Decision has any realistic prospect of success.

CONCLUSION

49.  I refuse to grant leave to the applicants or any of them to apply for judicial review of the Boards’ Decisions. Accordingly, I dismiss their joint application.

50.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the applications of the 2^nd applicant, the 3^rd applicant and the 4^th applicant a nullity.

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