Case Document

100%Judiciary

HCAL 868/2018

[2020] HKCFI 2394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 868 of 2018

BETWEEN

	Rini Widia Wati	1^st Applicant
	Khan Samra Khan	2^nd Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

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 40-year-old national of Indonesia who last arrived in Hong Kong on 19 September 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 October 2012 or within 2 weeks of its early termination, during which she formed a relationship with a Pakistani man, and she became pregnant in 2012, her employment contract was terminated on 24 August 2012, but she did not depart and instead overstayed in Hong Kong and later surrendered to the Immigration Department, and upon giving birth to a daughter, the 2^nd Applicant (“A2”) on 16 October 2012, she then raised a non-refoulement claim for herself and A2 on the basis that if they returned to Indonesia they would be harmed or killed by her father who opposed to her relationship with the Pakistani man and/or by her father’s creditor for failing to repay his loans. They were subsequently released on recognizance pending the determination of their claim.

2.A1 was born and raised in Palembang, Sumatera Selatan, Indonesia. After leaving school she went to work in Singapore as a domestic helper before coming to Hong Kong in 2005 to work as a foreign domestic helper.

3.During her stay in Hong Kong, A1 formed a relationship with a Pakistani man, but when she informed her parents of it, her father was furious as he was against their relationship, and after her mother passed away in 2012, her father demanded her to remit money to him so that he could repay his loans, and when she failed to do so, she received threatening calls from his creditor, and so when her employment contract was terminated, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after giving birth to A2, they raised their non-refoulement claim for protection, for which A1 completed a Non-refoulement Claim Form on 22 September 2014 for herself and A2 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 22 February 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of their 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s father or his creditor upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any intention on their part to harm the Applicants, that their disputes were private family and monetary matters 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working 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 A1’s father or creditor to locate them.

6.On 8 March 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which A1 attended an oral hearing on 6 February 2018 before the Board during which she declined to give any further evidence other than confirming the information previously submitted to the Director, nor was she willing to answer any questions put to her by the adjudicator for the Board. On 14 May 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board doubted even on the Applicants’ own case of any real intention on the part of A1’s father or his creditor to harm or kill them over what were essentially private family or monetary disputes without any official involvement that state/police protection would be available to the Applicants upon their return to Indonesia as well as reasonable internal relocation for them to move to other areas of Indonesia away from A1’s home village without any risk of being located by her father or his creditor that their claim for non-refoulement protection failed on all applicable grounds.

8.On 18 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she merely stated that they reject the Board’s decision as it disregarded their dangerous situation but without providing any particulars or elaborations as to how it did so, nor did they request any oral hearing for their application. As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

9.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.

10.In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their decision that the risk of harm in their 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.

11.In the premises and 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 the Applicants’ claim.

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

Dated the 23^rd day of September 2020.

(NG Hang-yin)
for Registrar, High Court

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

Notes for the Applicants: If leave has been granted, the Applicants or their solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicants propose to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicants on 23^rd September 2020 1^st Applicant: Rini Widia Wati 2^nd Applicant: Khan Samra Khan Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23^rd September 2020 Torture Claims Appeal Board Putative Respondent’s ref. nos.: USM 6467/17/3/122/I651 USM 6468/17/3/122/I652 Director of Immigration Putative Interested Party’s ref. nos.: QA T/C 554-5/14 (Formerly RBCZ 380/14 & RBCZ 647/14) [T4S53] Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)