RO'YUN NACHIF AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1253/2019

[2023] HKCFI 2320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1253 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 oral submissions by the Applicants in open court;

Leave for the Applicants to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 39-year-old national of Indonesia who last arrived in Hong Kong on 11 May 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 11 May 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 July 2012, she did not depart and instead overstayed in Hong Kong, and was arrested by police some 5 months later on 12 December 2012.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for being pregnant with a child from an affair with another man in Hong Kong, and after giving birth to her son, the 2^nd Applicant (“A2”) on 29 July 2013, she also raised a non-refoulement claim for him on the same basis.  They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised as a Muslim in Desa Centong Purworejo, Kulon, Blitar Province, East Java, Indonesia.  After leaving school she married her husband and raised a family with a daughter in her home district.

3.  To help out with her family’s finance, A1 in 2008 went to Singapore to work as a domestic helper, and remitting money every month to her husband in Indonesia for the support of their family.

4.  In April 2009 she returned to Indonesia but was shocked to find that her husband had spent her remittances on his drinking and gambling which led to heated quarrels between them during which she was beaten by her husband which led to further deterioration of their relationship.

5.  In June 2010 A1 started to come to Hong Kong to work as a foreign domestic helper and continued to remit money to her husband for the support of their family in Indonesia.  During her stay in Hong Kong she met and formed a relationship with a Pakistani man which later led to her pregnancy and the birth of A2, and when it was discovered by her husband who became furious and threatened to kill her and A2 should they return to Indonesia, and so after her last employment was prematurely terminated in July 2012, A1 was afraid to return to Indonesia and therefore overstayed in Hong Kong, and subsequently raised her non-refoulement claim for protection, and after giving birth to A2, she also raised a claim for him on the same basis, and for which she completed a Non-refoulement Claim Form (“NCF”) jointly for the 2 of them on 26 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 25 October 2017 the Director of Immigration (“Director”) rejected the Applicants’ claims 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 the Applicants’ claims and assessed the level of risk of harm from A1’s husband upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention of him to seriously harm or kill either of them, that in any event it was a private domestic dispute between A1 and her husband without any official involvement that state or police protection would be available to the Applicants 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 with A2 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 to locate them.

8.  On 6 November 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 14 January 2019 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 8 April 2019 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted A1’s evidence of fear of risk of harm from her husband against her and A2 over her affair with another man and the birth of a child from that relationship in Hong Kong, but found in the absence of any official involvement that state or police protection would be available to both Applicants upon their return to Indonesia as well as reasonable internal relocation for them to move safely to other part of the country away from A1’s home district without any risk of being located, while relevant COI also show that assistances and support are available from both the Indonesian government and NGOs to help them to adjust to life in Indonesia without any real risk of any sorts that their claims for non-refoulement protection failed on all applicable grounds.    

10.  On 9 May 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or in A1’s supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor was she able to put forward any proper ground for their intended challenge at the hearing of their application.  As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

11.  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.

12.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.  I am of course aware that A2 is a minor now aged only 10-years old and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, nor was he in his appeal with his mother before the Board, and that it would be necessary to separately consider and examine whether his claim had been properly considered and determined by the Board in a manner sufficiently to meet the high standards of fairness 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 by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971 and summarized by the same Court in Re Jasvir Singh [2021] HKCA 53 as follows:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(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 circumstance 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 if 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 the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

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

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions.  In so doing, 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 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 there 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 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 of 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.”   

14.  In the present case, the claim of A2 as stated in his joint NCF with his mother, and which was prepared and completed with legal representation from DLS, was based on the same facts and risk as in A1’s claim, and as noted above that the Board had accepted the centerpiece of A1’s claim of risk of harm from her husband but determined that any such risk will be negated by state protection being available to A1 and A2 upon their return to Indonesia where even on A1’s own admission that she has been forgiven by her mother and family whose support and assistances no doubt both A1 and A2 will be able to count on as noted by the Board (see [34] of decision), while the Board did also take into proper account and consideration of A2’s own personal circumstances as a “mixed race” born out of wedlock to an Indonesian mother and a Pakistan father in the conservative Indonesian society and determined that with supports from his mother and her family as well as various government departments and NGOs that A2 would not face any such risk or that any such risk will also be negated by reasonable internal relocation available to him and his mother upon his return to Indonesia (see [63] – [65] and [73] – [75] of the Board’s decision).

15.  In the circumstances, I am satisfied that the Board had properly and separately assessed and determined A2’s claim and duly given reasons for rejecting it, and that there is nothing before the Court to indicate that the merits of his claim had not been fully or adequately explored before the Board or of any underlying matter that may support A2’s minor-specific non-refoulement claim grounds that had not been advanced before the Board due to lack of legal representation such that the high standards of fairness were not met.  As such I shall accordingly treat A2’s lack of legal representation under Order 80 Rule 2 of RHC as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Jasvir Singh supra.

16.  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 the claims of both A1 and A2.

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