Andri Suherlina v. The Adjudicator of the Non-refoulement Claims Petition Office and Another

HCAL 348/2018

[2019] HKCFI 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 348 of 2018

BETWEEN

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 Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 35-year-old national of Indonesia who last arrived in Hong Kong on 20 December 2012 when she was arrested by police for attempted theft for which she was subsequently convicted and sentenced to prison for four weeks.  Upon her release from prison she was referred to the Immigration Department when she lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Jalan Muharto, Sub-district Kotalama, District Malang, East Java, Indonesia.  After leaving school she worked as a domestic helper in Singapore, and in 2003 married her husband and moved to live with him in Malang, East Java where she gave birth to two children.

3.In 2005 when her husband went to work in Malaysia, the applicant and children moved in with her parents in Tulung Agung, East Java until 2010 when her husband returned to Indonesia and resumed cohabitation with the applicant in District Lumajng, East Java where he built a special room in their house to worship his god and practice black magic.

4.However, their relationship started to strain when her husband became suspicious of the applicant having affairs with other men including with her brother-in-law during his absence working in Malaysia, and started to abuse her by slapping and kicking her and forbidding her from leaving the house.

5.On one occasion at night she was taken by her husband to a river to join other naked men and women performing strange rituals during which her husband demanded that she was to have sex with other men, and when she refused her husband hit her by punching and kicking and then dragged her home where he continued to hit her with a broomstick that she suffered pain and bruises all over her body.  Afterwards her husband put his hand on her forehead and mumbled something at her claiming that it would heal her wounds.

6.After the incident the applicant became fearful that her husband had used black magic to cast a spell on her and decided to leave him by moving back to her parents’ home in Tulung Agung.  On the following day her husband came to her parents’ home to ask her to go home with him, and when she refused he then left by himself.

7.However one month later her husband called to again accuse the applicant of having an affair with her brother-in-law and threatened that he would kill him within three days unless she agreed to return to his home to which she refused, but three days later when she heard that her brother-in-law had died in an accident when he fell in the toilet, the applicant suspected that it was caused by her husband’s black magic, and when her husband called again to warn her that she would be next, she started to feel sick with a headache.

8.When the applicant told her parents about her condition they believed it was caused by her husband’s black magic and advised her to stay far away from him in the hope that his spell would become less effective, and so the applicant decided to leave Indonesia for Hong Kong by applying for employment as a foreign domestic helper, and in August 2010 she departed for her first employment contract in Hong Kong.

9.In August 2012 the applicant returned to Indonesia to visit her children during which her husband repeatedly asked her to resume their cohabitation but when she refused, he again threatened to kill her with his black magic.

10.On 29 September 2012 the applicant returned to Hong Kong to resume her employment, but when her employment was terminated, she left for Macau while waiting for her next employment.  However, when she returned to Hong Kong on 20 December 2012 for her employment interview, she was arrested by police for attempted theft for which she was subsequently convicted and imprisoned for four weeks, and upon her release and awaiting deportation she lodged her non-refoulement claim for which she completed a Non-refoulement Claim Form (“NCF”) on 5 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

11.By a Notice of Decision dated 27 January 2017 the Director of Immigration (“the Director”) rejected the applicant’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 (“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”).

12.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed by her husband upon her return to Indonesia, that the evidence does not show any real intention of her husband to kill or inflict serious bodily harm on her, that her husband’s use of black magic to harm her or anyone else is merely her own speculation without any objective evidence, that her problems with her husband was a domestic dispute that state or police protection would be available her if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with working experience to move to other areas away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

13.On 8 February 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 29 December 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 23 January 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

14.In its decision the Board found the applicant to have failed to show any substantial grounds for objectively believing that she would be in danger of being subjected to torture or harm under any of the applicable grounds upon her return to Indonesia, that state or police protection would be available to her from what were plainly domestic violence from her husband, and that internal relocation to densely populated areas such as Jakarta, Surabaya or Bali would be a viable option for the applicant and hence it does not warrant non-refoulement protection for her in the circumstances of her case.   

15.On 5 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it she put forward the following grounds for her intended challenge:

(1)  that Director and the adjudicator reached their decisions wrongly in assessing her non-refoulement claim;

(2)  that their decisions were unreasonable and unfair under the Wednesbury test;

(3)  that they failed to take into consideration of right to life must be protected from extra-judicial killing which she may face if she was deported to Indonesia; and

(4)  that the adjudicator failed to give her sufficient time and opportunity to arrange relevant evidence to support her non-refoulement claim and her appeal.   

16.These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unreasonable or unfair, or what relevancy were extra-judicial killings to her claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

17.As for her complaint of not being given sufficient time or opportunity to present her evidence in support of her claim or her appeal, I note that it was never raised by her in her appeal to the Board nor during her oral hearing before the adjudicator, and that even now in her application or at her oral hearing before me she did not present any further evidence in support of her claim other than a letter received by the Court on 20 August 2018 in which she merely repeated her claim and that the decisions of the Director and the Board were unfair without any further particulars or additional evidence.  As such I do not find any merit in this complaint of the applicant either.   

18.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 applicant’s claim is plainly domestic violence for which state or police protection would be available to the applicant, and that it is a localized one where it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.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 applicant’s claim.

20.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 12^th day of April 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