Fitri-ambarwati and Another v. Torture Claims Appeal Board

HCAL 547/2017

[2018] HKCFI 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 547 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.The 1^st applicant (“A1”) is a 39-year-old national from Indonesia who last arrived in Hong Kong on 4 February 2012 to work as a domestic helper with permission to stay in that capacity until the expiration of her employment contract or within two weeks of its early termination.  On 13 March 2013 her employment contract was prematurely terminated but she failed to depart before 27 March 2013 and instead overstayed until 12 April 2013 when she surrendered to the Immigration Department.  On 21 May 2013 when she was charged with the offence of breaching her conditions of stay, she raised her torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“CAT”) that if returned to Indonesia she would be harmed or killed by her uncle BD for refusing to convert her religion from Islam to Christianity, or by a man SM with whom she had had a relationship prior to her departure from Indonesia.  She was then released on recognizance pending determination of her claim.

2.A1 was born and raised as a Muslim in Desa Kebumen, Banyubiru, Semarang of Central Java, Indonesia.  After completing her secondary education she assisted her mother in selling fruits and later married her former husband with whom she gave birth to a son in 2008.  They divorced each other afterwards and the son has since been in the custody of her former husband.

3.After her divorce her uncle BD tried to persuade her to convert to Christianity, and even after A1 had moved to Bejalen, he would come to her place to ask her to go back to Desa Kebumen and to convert to Christianity, and on two occasions in late 2008 BD lost his temper with A1 and hit her violently that she had to hide in her friend’s place, but she did not report the matter to the police as BD was her uncle.

4.In about January 2009 A1 started a relationship with SM who claimed to be a member of the Taliban terrorist group, but when he started to demand money from her and when she was unable to do so he would become violent towards her by hitting her.  Later A1 was advised by her friend to go work in Hong Kong to become financially independent, and on 30 August 2010 she came to Hong Kong to work as a domestic helper on her first contract, but when SM found out about it, he would make threats against her for her to send him money otherwise he would hurt her son.

5.Upon finishing her first employment contract, A1 re-entered Hong Kong on 4 February 2012 for her second contract, and later started a relationship with a Pakistani man in Hong Kong with whom she went through certain Islamic rites and marriage ceremonies on 14 October 2012.  When her employment contract was terminated prematurely on 13 March 2013, she did not depart from Hong Kong and later surrendered to the Immigration Department and lodged her torture claim when she was released on recognizance pending determination of her claim.     

6.On 29 October 2013 A1 gave birth to a daughter, the 2^nd applicant (“A2”), in Hong Kong out of her relationship with the Pakistani man.  On 16 December 2013 when her torture claim was rejected by the Director of Immigration (“the Director”). A1 appealed to the Torture Claims Appeal Board (“the Board”) but it was also rejected by the Board on 14 January 2014 for being late with its filing.

7.Meanwhile on 20 December 2013 A1 lodged her non-refoulement claim with legal assistance under the Duty Lawyer Service, and on 6 February 2014 she also raised a non-refoulement claim on behalf of A2 and requested that the two claims be consolidated for consideration by the Director, with A1’s claim to be assessed under risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”) but not under torture risk as it had earlier already been dealt with, while A2’s claim was assessed on all applicable grounds including torture risk.

8.By a Notice of Decision dated 10 June 2015 the Director rejected both the claims of A1 and A2 on all the applicable grounds. In his decision the Director found that even on A1’s own case and given the lapse of time since she left Indonesia, any risk of harm from either BD or SM would be very low or have even dissipated, while they would not even know anything about A2, and that whatever disputes A1 may have with BD or SM, they were private and personal in nature with no involvement of the Indonesian government or the police, hence state protection would be available if A1 and A2 are to return to Indonesia if those risks still persist, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available for both of them to relocate to other parts of Indonesia with such a large population of 254 million people spread over a vast territory of more than 1.9 million square kilometers that they can live in cities such as Jakarta free of any risk from BD or SM.   

9.By a Notice of Further Decision dated 18 November 2016 the Director again rejected the applicants’ claim in the absence of any response from them to an earlier invitation for them to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal they filed on 22 June 2015 and for which A1 attended an oral hearing before the Board on 5 January 2017 during which she gave evidence and answered questions put to her by the adjudicator for the Board.

11.On 9 June 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director, as the adjudicator upon hearing A1 in evidence found it not credible even to the low standard required, as there were inconsistencies and that she was changing her case as she went along and therefore rejected her claim entirely for the reasons set out in details from paragraphs 57 to 61 of the Board’s decision, and concluded that there is no real chance of A1 or A2 being harmed at all by BD or SM if they are refouled to Indonesia.

12.On 24 August 2017 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but neither in it nor in her supporting affirmation of the same date did the applicants provide any grounds for review other than merely exhibiting a copy of the Board’s decision.

13.Nevertheless upon proceeding to consider both the decisions of the Director and the Board with rigorous examination and anxious scrutiny, I found that both the Director and the Board have applied all the relevant law and criteria in determining the applicants’ claim and for which A1 has also been given the opportunity to fully present her case and that of her daughter A2 before both the Director and the Board, and I do not find any error of law or procedural unfairness in either of their decisions, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicants’ claims.

14.In the premises there is simply no prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Dated the 13^th day of April 2018.

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