SALFITRI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1262/2019

[2024] HKCFI 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1262 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
	onsideration of the documents and oral submissions by the 1st Applicant in open court;

1.  Leave to amend Form 86 to include the 1^st Applicant’s daughter, Salfitri Limbu Chelsea as the 2^nd Applicant be granted; and

2.  Leave for the 1^st and 2^nd Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 46-year-old national of Indonesia who last arrived in Hong Kong on 15 February 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 March 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 24 February 2015, she did not depart and instead overstayed, and was arrested by police almost 9 months later on 17 November 2015, for which she was subsequently convicted for breaching her conditions of stay and was sent to prison for 2 weeks, and upon her discharge and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her former husband and/or his creditor for refusing to repay his debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  A1 was born and raised in Pakel Village, Sub-district Grabag, Magelang Regency, Central Java, Indonesia. After leaving school she went to work in Singapore as a domestic helper to make her living.

3.  In 2000 she returned to Indonesia to marry her former husband and raised a family with a son in her husband’s home district in Sub-district Muarainim, Palembang Regency, South Sumatra Province.

4.  However, she soon found her husband to be frequently out of jobs and hence with no financial ability to support the family, and in 2002 she left the marriage to return to her mother’s home in Pakel Village, and then resumed her job as a domestic helper in Singapore.

5.  In 2010 she returned to Indonesia to divorce her husband, and then started her employment in Hong Kong as a foreign domestic helper, during which she was told by her mother that her former husband had often come looking for her for money as he owed a lot of debts to some loan shark in Indonesia.

6.  On one occasion in 2013 when A1 returned to Indonesia for holiday, her former husband came to demand for money to repay his debts, and when she refused, he became furious and beat her that she eventually relented and paid him whatever she had, and before he left he said the money were not enough that he would return later for more and warned her that next time he would kill her if she did not being enough money for him.

7.  Thereafter A1 fled back to Hong Kong to resume her employment and cut off all contacts with her former husband, but in February 2015 when she returned to her parents’ home in Indonesia for holiday, some unknown men appeared and claimed to be sent by her former husband’s creditor to collect money from her as repayment of his debts, and when she was unable to do so, they then beat her and took her motorcycle, and threatened that she would be killed next time if she still failed to pay off her former husband’s debts.          

8.  Fearing for her life A1 on 15 February 2015 fled back to Hong Kong to resume her employment as a foreign domestic helper, but when her employment contract was prematurely terminated on 24 February 2015, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

9.  By a Notice of Decision dated 16 January 2018 the Director of Immigration (“Director”) rejected A1’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

10.  In his decision the Director took into account of all the relevant circumstances of A1’s claim and assessed the level of risk of harm from her former husband or his creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her for money, that in any event it was a private 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 or Surabaya where it would be difficult if not impossible for her former husband or his creditor to locate her.

11.  On 23 January 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 15 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 3 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

12.  In its decision the Board found material inconsistencies and discrepancies in A1’s evidence that it doubted the credibility of her claim of fear of harm from her former husband or his creditor that caused her to overstay in Hong Kong to seek protection, that even if her claimed risk were real that there was no evidence of any real intention of them to seriously harm or kill her over some private monetary dispute between them without any official involvement that state or police protection would be available to A1 upon her return to if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all the applicable grounds.    

13.  On 10 May 2019 A1 filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) Procedural impropriety in the Board’s failure to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a national state’s obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be efficient in any event but that the Board’s decision just focused on whether such reliefs showed merely signs of positive improvement;

(2) Procedural impropriety in that the Board failed to conduct sufficient inquiry into the relevant COI in its assessment of her claim;

(3) Procedural impropriety/irrationality in the Board’s failure to give reasons for its assessment of the lack of BOR 3 risk and/or sufficient basis to support its conclusion of lack of BOR 3 risk in her claim;

(4) Error/misdirection in law in the Board’s failure to take into account the consideration of psychological strain and threats to her personally or threats to her directly to kill her;

(5) Procedural impropriety in the Board’s failure to consider her fear properly when the loan shark has continued to look for her that she will face such real risk from him or his followers due to the large debts owed by her former husband that both she and her family would be in danger from such risk; and

(6) That there was no sufficient basis for the Board to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon her refoulement.     

14.  Meanwhile going back in time to 2016 while she was released on recognizance pending the determination of her non-refoulement claim, A1 formed a relationship with a Nepalese man who is a Hong Kong resident, and out of such relationship she on 15 March 2022 gave birth to their daughter, the 2^nd Applicant (“A2”) for whom A1 subsequently also raised a non-refoulement claim on the same bases, and for which A1 completed a NCF on 2 September 2022 for A2 with the same legal representation from DLS and attended a screening process before an immigration officer for A2’s claim.

15.  By a Notice of Decision dated 22 November 2022 the Director also rejected A2’s claim on all the applicable grounds after taking into account all the relevant circumstances of both she and her mother and upon similarly assessing the level of risk of her being harmed or killed by her mother’s former husband or his creditor on her return with her mother to Indonesia as low due to the low intensity and frequency of past ill-treatment of her mother and the absence of any such past ill-treatment of her or even any knowledge of any of them of her existence at all, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to A2 upon her return to Indonesia as well as reasonable internal relocation within the country away from her mother’s home district without any risk of being located by her mother’s former husband or his creditor, while relevant COI also show there are laws and government policies in Indonesia to protect children of illegitimacy or inter-race or inter-religion from racial or religious discrimination or persecution as well as various NGOs to support and assist them as to their needs that it concluded that A2’s claim for non-refoulement protection failed on all the applicable grounds.

16.  On 28 November 2022 A1 also lodged an appeal for A2 to the Board against the Director’s decision, and for which A1 again attended an oral hearing on 20 October 2023 before the same Board as before during which she again gave oral evidence and answered questions raised of A2’s claim by the same Adjudicator for the Board as well as providing additional information specifically as to A2’s personal circumstances as an illegitimate child born to a non-Indonesian father. On 10 November 2023 A2’s appeal was also dismissed by the Board which also confirmed the Director’s decision.

17.  In this decision the Board apart from similarly rejecting her mother’s claimed fear of risk from her former husband and his creditor as noted above at [12] as not credible or reliable and that even if such risk were real would be negated by the availability of state protection and reasonable internal relocation, it also went on to separately consider A2’s claim as a child of inter-race and inter-religion as to any risk of discrimination or persecution as such in the Indonesian society, and found that the level of risk of her being subject to such ill-treatment if refouled to Indonesia as low given the prevailing law governing Indonesian nationality/citizenship that A2 as her mother’s issue would be treated as an Indonesian citizen and entitled to the protections provided by the laws and government policies for children of inter-race and inter-religion from racial or religious discriminations or persecutions as well as various NGOs to provide supports and assistances based on relevant COI that A2’s claim also failed on all the applicable grounds.     

18.  A1 did not file any Form 86 for A2 for leave to apply for judicial review of this decision of the Board, but by a letter dated 22 November 2023 she applied for A2 to be included as the second applicant in her own Form 86, and upon being advised by the Court to apply for Legal Aid for legal representation for A2 but which as noted above was unsuccessful, and upon hearing A1 at the hearing of her leave application during which she confirmed that A2 also relies on the same proposed grounds as listed above for her application, and to save time and costs, I allowed her request to include her daughter as the second applicant in the leave application now before me and accordingly named her as 2^nd Applicant, and proceed to next consider their proposed grounds for their intended challenges of the respective decisions of the Board.        

19.  These are however all just bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was there procedural impropriety or irrationality or error in the Board’s decision or assessment or determination of their claims, or how did the Board fail to conduct proper or sufficient inquiry into relevant COI or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence is there to suggest that the Applicants have ever been tortured under BOR 3 or CIDTP when on the factual basis of even their own case that it was a private monetary dispute between A1 and her former husband/his creditor only without any official involvement or political elements. As such, and as none of these assertions were properly elaborated or presented with any relevant or necessary particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenges.

20.  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.

21.  In the Applicants’ case, the Board separately rejected their claims for the thorough and detailed analysis and reasoning set out in its respective decisions with the benefit of hearing A1 for both herself and A2 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board in either decisions.

22.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risks of harm in the claims of both A1 and A2 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.                

23.  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 either claims of A1 or A2.

24.  I am of course mindful of the fact that A2 being a minor of just 2 years old was without legal representation in her appeal to the Board or in her present leave application before me as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A after her mother’s application for Legal Aid for her upon the court’s advice was unsuccessful, and hence it would be necessary to separately consider and examine whether A2’s 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 her potential minor-specific non-refoulement bases but which might not have been properly advanced to the Board due to lack of legal representation in her 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 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.

25.  In the present case with A2, having subjected the Board’s decision to rigorous examination and anxious scrutiny, and that the Board as noted above did as a matter of fact deal with her claim individually and separately from her mother’s claim, I am satisfied that the Board did do so properly including taking account of all her potential minor-specific non-refoulement bases as evidenced in its detailed analysis and reasoning set out in [25] – [27] of its decision which are specific to her personal circumstances, and in the absence of any argument or submissions from her mother to the contrary, I do not find any underlying matter which might support A2’s minor-specific non-refoulement basis or ground but had not been advanced before the Board due to lack of legal representation for her in her appeal to and before the Board or in these proceedings.     

26.  In the premises, as I am for all the given reasons 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 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