Masruroh Imas and Another v. Yung Yiu-wing, Esq., Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 337/2018

[2019] HKCFI 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 337 of 2018

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:

1. an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 November 2017 refused; and

2. leave to apply for Judicial Review dismissed.

It is further directed that:-

3. if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4. when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5. the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6. if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7. liberty to apply.

Observations for the Applicants:

1.The 1^st applicant (“A1”) is a 32-year-old national of Indonesia who arrived in Hong Kong on 17 December 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 17 December 2014 or within 14 days of its early termination, but when her contract was prematurely terminated on 22 December 2013, she did not depart and instead overstayed in Hong Kong until 21 February 2014 when she surrendered to the Immigration Department and later 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 boyfriend for having left him, and when she later gave birth to her daughter, the 2^nd applicant (“A2”) on 6 June 2014, she also lodged a non-refoulement claim on her behalf on the same basis.  They have since been released on recognizance pending the determination of their claim.

2.A1 was born and raised in Sukatani Village, Kosbar Hamlet, Cilamaya Sub-District, Karawang Regency, West Java, Indonesia where her parents and most of her siblings still live.  After leaving school she first worked in the garment factories in West Java, and later as a foreign domestic worker in Taiwan.

3.In early 2012 her mother introduced MA, a factory owner in Karawang, to A1 as her boyfriend, but after dating MA for several weeks, A1 disclosed to her mother that she did not want him to be her boyfriend as she found him rude and did not like him, but when she told MA that she wanted to end their relationship, MA refused and insisted that he planned to marry her.

4.In order to put an end to their relationship A1 decided to leave Indonesia by making arrangements to work as a foreign domestic helper in Hong Kong, and so on 17 December 2012 she came to Hong Kong to take up her employment where she later met an Indian man in May 2013 with whom she subsequently formed a relationship, and in November 2013 they got married under Islamic religious ceremonies.

5.However, when A1 became pregnant with A2 and her employment was prematurely terminated on 22 December 2013, she overstayed in Hong Kong but when she learnt from her mother in early 2014 that MA had threatened to kill her and her child after being told of her marriage and pregnancy, she therefore surrendered to the Immigration Department and raised her non-refoulement claim, and also for A2 after her birth, and for which she completed a Non-refoulement Claim Form (“NCF”) for both of them on 17 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 10 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the applicants’ claim and assessed the level of risk of harm from MA upon their return to Indonesia as low due to the absence of any past ill-treatment or any direct threats from him other than what was told by A1’s mother which is hearsay, that in any event after all these years that it is most unlikely that MA would still hold any grudge against A1, that it was a private personal dispute between them 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 253 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 work experience to move with A2 to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for MA to locate them.

8.By a Notice of Further Decision dated 6 June 2017 the Director again rejected the applicants’ claim upon receiving and considering their further submission 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”).

9.By then the applicants were already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 23 February 2015, and for which they attended an oral hearing on 20 July 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 2 November 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board similarly found the risk of fear of any harm from MA to the applicants upon their being refouled to Indonesia as low and unlikely due to their shallow relationship and the absence of any past ill-treatments from MA or the lack of any reliable or independent evidence of any threats from him after all these years, that whatever the truth of such threats from MA that both state protection and reasonable internal relocation options are available to the applicants that they failed on all applicable grounds to establish that they would be at risk of the harm claimed upon their return to Indonesia, or that any harm warranting non-refoulement protection for them in Hong Kong. 

11.On 5 March 2018 A1 filed a Form 86 for herself and on behalf of A2 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 their intended challenge:

(1)procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(2)irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(3)irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(4)irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

(5)irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(7)procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8)procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.  

12.By then the applicants were late by about one month with their Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.In the applicants’ case the time for filing their Form 86 expired on 2 February 2018, for which A1 did not provide any explanation for the delay in her affirmation, and at the hearing she explained she was unaware of the rule and mentioned something about giving birth to another child at that time, of which she did give any further details but I am preparedto accept her explanation and propose to focus more on the merit of the intended application to see whether the applicants can show that there is a reasonable prospect of success in persuading the Court that there are errors of law or procedural unfairness or irrationality in the Board’s decision.

14.Those grounds proposed by the applicants above are however all just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and I do not find any basis or merits in any of them.

15.The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submissionand other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

16.Even if it is true that the hearing bundle indeed came to them late as alleged, and that the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all being made available to them when they still had legal representation, whilst their NCF was completed on A1’s own instructions with legal assistance, and that at the appeal hearing A1 never raised any issue or requested the adjudicator for further time to enable her to better prepare for their appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

17.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 the applicants’ claim 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.

18.In the premises and having proceeded to consider 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.

19.For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, therefore I am not prepared to extend time to their application and accordingly dismiss their leave application.

Dated the 29^th day of March 2019.

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