NENNY AGUSTINA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

1.   The 1^st Applicant’s leave to apply for Judicial Review be refused;

2.   The 2^nd Applicant’s leave to apply for Judicial Review be allowed; and

3.   There be no order as to costs, save that the 2^nd Applicant’s own cost be taxed in accordance with Legal Aid Regulations.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 11 September 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 6 August 2019 (the “Decision”) dismissing their appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 January 2015 (the “2015 Notice”) and Notice of Further Decision dated 28 November 2016 (the “2016 Notice”), refusing their application for non-refoulement protection (collectively, the “Notices”).  The 1^st Applicant acted in person. The 2^nd Applicant is legally aided.

Background 

2.  The Applicants are Indonesian nationals, now aged 42 and 15 respectively.  The 1^st Applicant is the mother (the “mother”) of the 2^nd Applicant (the “daughter”).  The mother last entered Hong Kong to work as a foreign domestic helper on 9 August 2009.  She overstayed since 31 October 2009 after her employment was prematurely terminated.  She developed a relationship with a non-refoulement claimant from Bangladesh (“her partner”) and gave birth the daughter on 7 October 2010.  On 21 December 2011, she raised a torture claim[1] (the “Torture Claim”)on behalf of herself and her daughter.  Their Torture Claim was rejected by the Director on 6 March 2013.  The Director’s decision became final because the Applicants did not appeal within time.  Following the implementation of the Unified Screening Mechanism (the “USM”), their claims were further assessed on all applicable grounds under the USM other than torture risk ground.  Their claims under BOR 3 Risk ground[2] and Persecution Risk ground[3] were rejected by the Director’s 2015 Notice.  Their claim under BOR 2 Risk ground[4] was rejected by the Director’s 2016 Notice.  Their appeal against these decisions in the Notices was dismissed by the Board’s Decision.  They now apply for leave to apply for judicial review of that Decision.

3.  Their personal background, the factual background leading to the present application, the basis of their claim and the arguments they advanced, the finding of the Board and the reasons for its Decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[5] for reference.  In gist, the 1^st Applicant claimed that if returned to Indonesia, she and her daughter would be harmed by the mother’s father who refused to accept her giving birth to the daughter out of wedlock, by the victims of the mother’s brother’s thievery and by the uncertainties they would have to face in Indonesia.

4.  The 1^st Applicant married her Bangladeshi partner under Islamic ritual at a mosque in Shamshuipo on 14 June 2009, but their marriage was not registered.  She returned to Indonesia for holiday between June and August 2009.  She recalled that two persons armed with knives had come to her home and demanded compensation for money stolen by her brother, otherwise they would report the matter to the police.  She paid them some money and thought the matter settled. 

5.  When she told her parents in about March 2010 about her relationship with her partner and her pregnancy, her father was furious and told her “not to come home ever again” and threatened that she “will see what [they] will do to [her] if [she] comes back”.  Thereafter, she lost contact with her family.  She was told by her neighbour in August 2010 that her family had moved.  In September 2013, her neighbour told her that her brother was serving a prison sentence in 2012.

6.  The mother did not believe the authorities and the police in Indonesia will protect her and her daughter because they are corrupt.  She believed internal relocation would not be feasible, as she did not have the financial resources and family support to rely on to live in other parts of the country.  Besides, she also worried that her daughter may not be able to go to school, and there would be no one to look after the daughter if she had to work overseas. 

The finding of the Board

7.  The Board seemingly assessed the Applicants’ claim on the basis of the case as the mother asserted.  It accepted that the mother’s father was furious and told her not to return home again.  Other than that, her father had never threatened her, let alone threatened to kill her.  Her father and family actually moved away and the mother lost contact with them.  The Board found it impossible for the mother to see her family again and virtually impossible for her father to do any harm to the mother and her daughter.  It found there was no evidence that any of the victims of the mother’s brother knew the mother, and even if they knew, there was no evidence that they would harm her or the daughter.  The Board therefore found there was no basis for the mother’s fear of harm from her father and her brother’s victims.  It also found neither of the Applicants had suffered any ill-treatment from the mother’s father or her brother’s victims at all, not to mention ill-treatment which attained the minimum level of severity.

8.  Furthermore, as the Applicant had never sought assistance from the authority, the Board considered that there was no evidence to support the mother’s belief that the police in Indonesia would not help her.  Hence, the Board found the Applicants had failed to prove that they would be subjected to the kind of ill-treatment contemplated in BOR 3 Risk ground, if they are refouled back to Indonesia.

9.  In respect of BOR 2 Risk claim, the Board held that after careful consideration of the Applicants’ case, there was nothing in their case that supported their claims under BOR 2 Risk ground.

10.  In respect of Persecution Risk claim, the Board had no doubt that the mother is an Indonesian national and is outside her country of nationality.  On that basis, it also had no doubt that the daughter was born to an Indonesian mother.  It then found for the same reason that their case has nothing to do with the issue of race, religion, nationality, membership of a particular social group, or political opinion; and therefore also failed.

11.  Lastly, the Board also considered the Applicants could further avoid the risk of harm through internal relocation.  While accepting the mother’s argument that, being a single mother, she would face more difficulties than an average single woman, the Board found from independent country of origin information (“COI”) that there were support groups for single mothers in Indonesia, such as the Single Moms Indonesia which provide support to single mothers and their children with regard to motherhood, lifestyle, education and parenting issues, and assist single mothers to rebuild their lives as a mother and as individuals in Indonesia.  It found the mother should have no difficulty relocating to other cities outside her home town in Indonesia.

12.  For all these reasons, the Board dismissed the Applicants’ appeal.

Legal principles applicable to judicial review

13.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

The mother’s grounds of judicial review

14.  The mother did not advance any grounds of review in the leave application.  In her supporting affirmation, she complained that the Board disregarded their dangerous situation.  That is in effect a direct challenge of the Board’s finding of fact that the Applicants would not be at risk of any of the proscribed harm, if refouled, which is not permissible, save for errors of law, procedural unfairness and irrationality in the Decision.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny of the Board’s Decision in respect of the mother

15.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board conducted a rehearing.  It assessed the Applicants’ evidence carefully, tested it against common sense, inherent probability and authoritative and credible COI.  It found there was no basis for the mother’s fear of harm from her father and her brother’s victims.  It found her fear of harm from her brother’s victims purely speculation on her part.  It also found neither of the Applicants had suffered any ill-treatment at all, not to mention ill-treatment which attained the minimum level of severity.  These are the Board’s finding of facts which the Court may not intervene, save for errors of law, procedural unfairness or irrationality and this Court could find no reason for doing so.  On the basis of these finding of facts, the Board further found the mother had failed to prove the Applicants’ claim for protection under BOR 3 Risk ground.  This is a mixed finding of law and fact.

16.  In respect of BOR 2 Risk ground, the Board held in paragraph 43 of its Decision that there was nothing in their case that supported their claim and dismissed their claim under this ground.  The mother did not make any specific submissions on this ground, but Mr Lo, counsel for the daughter, did.  Though Mr Lo did not represent the mother, this Court considered it should consider those arguments to the extent applicable to the mother’s case in its anxious scrutiny of the Decision in respect of the mother. Mr Lo referred to paragraph 43 of the Decision and argued that the Board had not given any reasons for this finding and that constituted an error of law and is evidence of procedural unfairness. 

17.  The Board’s finding under this heading in paragraph 43 of its Decision is composed of two sentences.  In its first sentence, it said after careful consideration, it found nothing in their case that supported their claim under this heading.  In the second sentence, it just dismissed their claim under BOR 2 Risk ground.  Though on the face, the Board had given no reasons for its finding, in the context and the nature of the document in which the word ‘nothing’ appears, it is clear that the word ‘nothing’ means ‘no evidence’.  Thus, the Board’s reason for its Decision is that it found no evidence to support the Applicant’s claim under the BOR 2 Risk ground.  This Court does not shy away from the fact that there are certainly much more to be desired in the Decision, but it is of the opinion that adequate reasons had been given.

18.  Though the Decision is compartmentalised under a number of sections or headings, it has to be read as one integral decision.  In paragraphs 9 and 10 of the Decision under the heading of ‘Background’, the Board mentioned the immigration officer’s request to the mother for information in support of her claim under BOR 2 Risk ground, her failure to respond and the Director’s decision that the Applicants had failed to establish their claim under BOR 2 Risk ground, obviously for want of supporting evidence.  In paragraph 14, it set out the provisions under BOR 2.  Paragraph 1 of BOR 2 provides that the right to life shall be provided by law.  Under paragraph 1 of BOR 2, only the home state or the “risk state” could be in breach of this obligation.  Paragraphs 2 to 6 of BOR 2 deal with death sentence and genocide.  Thus, the coverage of BOR 2 Risk is very limited.  Since the burden of proving their entitle to protection is on the Applicants and as the Applicants did not respond to the immigration officer’s request for information, there was no evidence that the Applicant’s home state was in breach of the obligation under paragraph 1 of BOR 2 and there was also no evidence that either of the Applicants were subject to a death sentence or at risk of genocide.  To a legally trained reader, the Board’s reasons for the decision under BOR 2 Risk ground is clear enough: there was no evidence of breach of paragraph 1 of BOR 2 and that paragraphs 2 to 6 of BOR 2 were not engaged.  The Applicants bear the burden of proving their claim, though on a low standard.  They gave not a scintilla of evidence.  They gave not even a vague suggestion or indication that a death sentence has been passed on them. It is also out of all imagination that at this day and age a death sentence could have been passed on an eight year old girl in Indonesia.  They gave not even a vague indication that the human rights situation in Indonesia is so dire that returning them to Indonesia is putting their lives at risk of arbitrary deprivation.  There was not even a vague suggestion that could provoke the Board’s duty of joint endeavour to find out more from the Applicants or to research more into the COI to help them prove their claim.  Thus, when the Board said ‘there was nothing in their case that supports their claim’, it clearly means there was no evidence that supports their claim.  There was indeed no evidence.  Mr Lo has not identified any to suggest that the Board could be wrong.  The Board’s decision in respect of this ground is also a mixed question of law and fact, and very much the latter.

19.  In respect of Persecution Risk ground, the Board noted that the mother is an Indonesian national outside her country of nationality and found “for the same reason as above” that the Applicants’ case had nothing to do with the issue of race, religion, nationality, membership of a particular social group, or political opinion and dismissed their claim under Persecution Risk ground.  While this Court agrees with its conclusion, there are logical problems in the Board’s finding.  The “same reason as above” must refer to its finding of fact under paragraphs 35 to 42 of its Decision as summarised in paragraph 15 above. These are that there is no basis for the mother’s fear of harm from her father and her brother’s victims and that neither of the Applicants had suffered any ill-treatment at all, not to mention ill-treatment which attained the minimum level of severity.  Ill-treatment which attains the minimum level of severity or risk of such ill‑treatment and that such ill-treatment is on account of a Convention reason are two necessary elements which must be proved to establish a claim to non-refoulement protection.  It is logically difficult to see how the absence of such ill-treatment or risk of such ill-treatment could lead to the conclusion that the ill-treatment had nothing to do with the five Conventional reasons.  As a matter of law, the absence of either one of these two elements is sufficient to disqualify a claim under Persecution Risk ground.  Thus, regardless whether the ill-treatment or risk of such ill-treatment is for a Conventional reason, the Applicant is not entitled to protection because of the absence of such ill‑treatment or risk of such ill-treatment (or that the risk was low).  The Board is absolutely correct, but careless in expressing itself.  This blemish does not affect the Decision. 

20.  All these findings are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not intervene unless the Decision was made as a result of error of law, procedural unfairness or is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the mother failed to discharge her burden of proving her fears and risks.  The Decision in respect of the mother is utterly without fault.  The proposed judicial review of that part of the Decision in respect of her claim has no realistic prospect of success.

The daughter’s grounds of judicial review

21.  The daughter’s pleaded the following five grounds of application:

(1)   the Board failed to rehear the daughter’s non-refoulement claim as a separate claim and/or at all to make its own determination on the merits of the daughter’s claim;

(2)   the Board had failed to pay special attention to examine the daughter’s circumstances in the context of high standard of fairness;

(3)   the Board erred in determining the daughter’s BOR 2 risk in a cursory manner inconsistent with the requirement of high standard of fairness;

(4)   the Board erred in assuming that the daughter was an Indonesian national or failing to note the significance of the issue of her nationality; and

(5)   the Board erred in relying on reasons for rejecting the mother’s BOR 3 Risk claim and Persecution Risk claim to conclude that the case for non-refoulement protection under Persecution Risk had nothing to do with the issue of race, religion, nationality, membership of a particular social group or political opinion.

In view of the course which this Court determines to take, the Court will give very brief reasons for its determination in respect of these grounds, except for Ground (3).

22.  The daughter is a minor.  It is well established law that the non-refoulement claim of a minor must determined separately from that of his parents: Fabio Arlyn Timogan[7].  The minor’s claim must be considered separately by reference to the personal circumstances of the minor separately from those of his parents.  This is so even if the claims of the minor and his parents are based on the same set of primary facts.  If the minor’s personal circumstances are no different from those of his parents, of course, the minor’s case stands or falls with the parents’.  It is also well settled that the Court in reviewing a Board’s decision rejecting the claim of a minor who was not legally represented before the Board, 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 in a manner consistent with the above: Fabio Arlyn Timogan.  The Court should also consider on a case-by-case basis whether there exists matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced before the Board because of the absence of legal representation.

23.  In the present case, the mother had raised the following vulnerabilities of the daughter in their Notice of Appeal:

(1)   the daughter is a girl minor;

(2)   she was aged eight at the time of the oral hearing before the Board;

(3)   she is a mixed race individual, her face, skin and name indicates or suggests she is of a mixed race heritage;

(4)   she was born out of wedlock and is without a father and identified as a ‘haram’ under Muslim teaching;

(5)   she was born outside Indonesia and had not lived and been educated in Indonesia; and

(6)   she is expected to be without a male relative taking care of her wellbeing in Indonesia, a predominantly Muslim country, with her mother’s native place also predominantly Muslim.

24.  Mr Lo referred to paragraphs 35 to 44 of the Decision and submits that the Board assessed both Applicants’ claim under BOR 3 Risk ground together.  Reading the Decision, the Court found it is at least arguable that the personal circumstances of the daughter have not been taken into account by the Board.  The same appears to be the case in the Board’s assessment of internal relocation in respect of the daughter.  The Board has not referred to any COI addressing minor-specific risks for the daughter.  This Court finds it at least arguable that Grounds (1) and (2) have prospect of success.

25.  In assessing the daughter’s claim under Persecution Risk ground, the Board accepted that the mother is an Indonesian national outside her country of nationality and noted that the daughter was born to an Indonesian mother.  It made no definitive finding as to the nationality of the daughter.  Seemingly, it proceeded to assess her claim on the basis that she is an Indonesian national.  Mr Lo submits that the daughter’s status as a foreign national outside of her home country is a crucial element in her claim.  He drew this Court’s attention to the Court of Appeal’s criticisms in Novi Azizah[8] of the Board’s approach.  In Novi Azizah, the Court of Appeal held that statelessness needs to be examined with reference to official materials and not as a matter of assumption or probability.  The Court of Appeal also indicated that given the mother’s unclear and non-official claim of nationality on behalf of her child and the lack of separate legal representation of the child before the Board, the issue of whether the child is an Indonesian national by virtue of the mother’s nationality and whether the child would not be accepted as such and as a refoulee by the Indonesian authorities, and whether these matters have any bearing on the child’s non-refoulement claim ought to be considered by the Board in the assessment of claim, including on internal relocation alternative.  Mr Lo argues that that what the Court of Appeal said about statelessness applies equally to nationality and submits that the Board had failed in all these respects.

26.  This Court has no doubts about the Court of Appeal’s dicta in Novi Azizah. Any material issues in dispute must be proved by evidence and not as a matter of probability, particularly with serious issues such as statelessness or nationality.  The Board had not made a finding on the daughter’s nationality.  It seemingly assumed she has Indonesia nationality.  Arguably, that is an error of law.  But the Court doubts the utility of such a challenge on the Board’s finding.  With respect, Mr Lo seems to have overlooked the question of burden of proof.  It is the daughter’s burden to prove her entitlement to protection which includes the important fact that she is a foreign national outside her country of nationality.  It is not the burden of the Board to prove she is a foreign national to give her protection or that she is not to dis-entitle her to protection.  The Board has no burden to prove one way or the other.  If the mother cannot prove the daughter’s foreign nationality (whether of Indonesia or Bangladesh), even on review, she would not be entitled to protection under this ground.  On the other hand, if the mother is able to show the daughter’s Indonesian nationality, what is the purpose of the challenge of this error from which the daughter has benefited.

27.  Putting aside the nationality issue, Mr Lo submits that the Board had failed to consider the personal circumstance of the daughter as a child of mixed race in her claim under Persecution Risk ground.  I agree it is at least arguable that the Board failed to consider if she is a member of a social group of mixed race children or children born out of wedlock. According to the mother, the daughter is identified as a “haram” by the community in her home village.  Reading the Decision, this Court is satisfied that there was no consideration of the personal circumstances of the daughter in the Board’s assessment of feasibility of internal relocation.

28.  In conclusion, I find it at least arguable that the daughter’s intended judicial review under Grounds (1), (2), (4) and (5) has prospect of success.  Other than this, the Court has no serious criticism of the Board’s Decision in respect of the daughter.

29.  This Court has not excluded the nationality issue from the leave application.  It has only expressed its doubt on the utility of that issue.  If the mother and her daughter’s legal team considers the issue relevant and intends to take up that issue in the substantive hearing, they should alert the Director and the Director may wish to consider adducing appropriate expert evidence on Indonesian law and participate in the substantive hearing. 

Conclusion

30.  For the above reasons, the 1^st Applicant’s leave application is refused, but the 2^nd Applicant’s leave application is allowed under Grounds (1), (2), (4) and (5).  The Court makes an order that there be no order as to costs, save that the 2^nd Applicant’s own cost be taxed in accordance with Legal Aid Regulations.

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