RIRIS TANTI WILUJENG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 285/2019

[2024] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 285 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 1st Applicant in open court and the 2nd Applicant being excused (“the Applicants”);

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 38-year-old national of Indonesia who first arrived in Hong Kong in 2006 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, during which she on 4 June 2011 gave birth to her son, the 2^nd Applicant (“A2”) out of a relationship with a Sri Lankan man in Hong Kong, but when her last employment contract was prematurely terminated on 20 April 2013, she did not depart and instead overstayed, and was arrested by police on 16 May 2013. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection for herself and her son on the basis that if they returned to Indonesia they would be harmed or killed by her family who opposed to her relationship with her Sri Lankan boyfriend and for giving birth to her son out of wedlock and contrary to the teachings of Islam. The Applicants were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised as a Muslim in Village Bantur, District Malang, East Java, Indonesia. After leaving school she came to Hong Kong in 2006 to work as a foreign domestic helper, during which she met and formed a relationship with a Sri Lankan man who is also a Muslim and a non-refoulement claimant due to certain risk which he claimed to fear if returned to Sri Lanka and was also released on recognizance pending the determination of his claim in Hong Kong.

3.  In 2009 A1 and her boyfriend decided to get married, but when she so informed her mother on the phone, her mother strongly opposed to her marrying someone not from Indonesia which was against their Javanese culture, and threatened to disown her and cut her off from the family.  Thereafter A1 was unable to contact her mother again on the phone, and when she was later able to contact her sister, she also scolded the Applicant for bringing shame to the family and told her not to contact the family again.

4.  A1 thereafter did not register the marriage with her boyfriend in Hong Kong as she was unable to submit the relevant documents such as her birth certificate and family card, but continued her relationship with her boyfriend, and on 4 June 2011 gave birth to her son A2, but when she subsequently informed her elder sister of the same and her plan to bring her son back to Indonesia, whereupon her mother snatched the phone and scolded A1 for bringing shame to the family by giving birth to a child out of wedlock in contrary of Islamic teaching.   

5.  Several days later A1 received a telephone call from her elder brother from Indonesia informing her that their father had just passed away from a massive heart attack after being terribly upset by her last phone call, for which her brother blamed her and threatened to kill her when she returned to Indonesia.

6.  Thereafter A1 was unable to have any further contact with her family in Indonesia, but when her last employment contract was prematurely terminated in April 2013, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection jointly for herself and her son, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While released on recognizance pending the determination of their claims, A1 was again arrested by police on 24 July 2013 for theft for which she was subsequently convicted and sentenced to prison for 1 month, and upon her subsequent discharge for prison she was again released on recognizance.               

8.  By a Notice of Decision dated 27 October 2017 the Director of Immigration (“Director”) rejected the Applicants’ claim 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claims and found no substantial grounds for believing that there will be any real risk of them being harmed or killed by her family members upon their return to as Indonesia due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill either of them over their disputes which were just private matters within their family without any official involvement that state or police protection would be available to the Applicant 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 any members of A1’s family to locate them.

10.  On 7 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 10 October 2018 before the Board during which A1 gave evidence on their behalves and answered questions raised of their claims by the Adjudicator for the Board. On 24 December 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted A1’s claim of opposition from her family to her relationship and/or proposed marriage with her Sri Lankan boyfriend and her birth of A2 out of wedlock in contrary to Islamic teaching but found no reliable evidence of any real intention of her family to seriously harm or kill her or A2 upon their return to Indonesia, that even if such risk were real or still exists that it arose from some private personal dispute between them within their family without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia if resorted to, nor is it accepted that A2 being born outside the country would not be entitled to government benefits in Indonesia or will have other difficulties including schooling or education as other Indonesian children evidenced by the fact that he has been issued an Indonesian passport, and that reasonable internal relocation alternatives are available for A1 to move safely with A2 as well as with her Sri Lankan boyfriend given their good relationship to other parts of the country away from her home district without any risk of being located that the Applicants’ claims for non-refoulement protection failed on all the applicable grounds.    

12.  On 30 January 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in their Form or A1’s supporting affirmation of the same date in which she just attached a copy of the decision and referred to some part of it which she did not agree but without any relevant or meaningful elaboration or put forward any proper ground for their intended challenge, nor were they able to do so 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.

13.  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.

14.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims even 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. 

15.  I am of course mindful of the fact that A2 being a minor at his present age of 12 years old and was without legal representation in his appeal before the Board. or in his present leave application as required by Order 80 rule 2 of the Rules of the High Court, and hence it would be necessary to separately consider and examine whether his claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [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.

16.  In the present case with A2, having subjected the decision to rigorous examination and scrutiny, I am satisfied that the Board did do so and separately as to his personal circumstances as evidenced by the detailed analysis and reasoning set out in [91 – [99] when it took into account and consideration of his own particular circumstances as being an illegitimate child born outside Indonesia and out of wedlock of a Muslim Indonesian mother and a Sri Lankan father as well as his having been receiving his education wholly in Hong Kong, nor do I find any underlying matter which may support his minor-specific non-refoulement bases or grounds but which had not been advanced before the Board due to lack of legal representation for him in his appeal before the Board or in these proceedings.                               

17.  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 Applicants’ claim, and shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review: see Zoraydah [2020] HKCA 442; and Jassal Tajinder Kumar [2021] HKCA 124.

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