Kundiana and Another v. Immigration Department

HCAL 270/2018

[2020] HKCFI 1294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 270 of 2018

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 the Applicants being present / 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 41-year-old national of Indonesia who last arrived in Hong Kong on 27 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 March 2016 or within two weeks of its early termination.  When her contract was prematurely terminated on 11 September 2015 as she had earlier given birth to a daughter the 2^nd Applicant (“A2”), she however did not depart and instead overstayed until she was arrested by police on 20 October 2015. After she was referred to the Immigration Department for investigation, she 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 A1’s husband and brother for having given birth to A2 out of wedlock with another man thereby bringing shame and disgrace to them and the family. The Applicants were subsequently released on recognizance pending the determination of their claim.

2.A1 was born and raised as a Muslim in Village Legok Kalong, Karanganyar, District Pekalongan, Central Java, Indonesia.  After leaving school she worked in the factory, married her husband in 2004 arranged by her family, and moved to live in his home in Villa Gading Harapan, Bekasi, West Java, Indonesia.

3.Soon A1 discovered that her husband had a quick temper and would be abusive and violent towards her whenever he lost his temper by slapping her around.

4.In 2007 A1 wanted to go overseas to work as a foreign domestic helper in order to help with the family’s finance, but her husband objected and threatened to break her legs if she dared to do so.  Despite the warning A1 secretly attended training and applied for such employment in Hong Kong.

5.In June 2007 A1 commenced her employment in Hong Kong and would remit part of her salary to her husband in Indonesia for the support of their son, and her husband’s anger with her working overseas had gradually diminished over the years.

6.In February 2011 when A1 returned to Indonesia for two weeks during her employment break, she discovered that their matrimonial home had been confiscated by the bank after her husband ran up a large debt without repayment during her absence, and as a result she had a big quarrel with him during which she was slapped by him on the face,and when she demanded for a divorce, he threatened that he would kill her if she dared to do so, and when she found that her elder brother was not sympathetic to her plight, she then stormed out of the home and returned to Hong Kong to resume her employment without any further contact with her husband or her brother.

7.In 2013 A1 met a Tanzania man in Hong Kong and they soon formed a relationship,but when she found herself pregnant with his child in 2014, and after having disclosed it to her good friend in Indonesia, somehow her husband and her elder brother had found out about it and warned her friend that if A1 were to give birth to a child out of wedlock with another man in Hong Kong, it would bring shame and dishonor to her husband and her family that they would kill her and her child should she dare to return to Indonesia.

8.On 22 June 2015 A1 gave birth to A2 in Hong Kong, and soon her employment was terminated by her employer, but she did not depart Hong Kong as she was fearful that she and A2 would be harmed or killed by her husband or her elder brother, she therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection for herself and A2, for which she completed a Non-refoulement Claim Form for herself and A2 on 6 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.By a Notice of Decision dated 18 August 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all 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”).

10.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 A1’s husband and/or her elder brother to the Applicants upon their return to Indonesia as low due to the absence of any past ill-treatment from them, that their disputes were private domestic or family 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 256 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with work experience to safely move with A2 to other part of Indonesia away from her home district in large cities such as Bandung or Surabaya where it would be difficult if not impossible for her husband or brother to locate them.

11.By a Notice of Further Decision dated 11 July 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation 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”).

12.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, the notice of which was filed on 30 August 2016, and for which they attended an oral hearing on 19 December 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 5 January 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.In its decision the Board expressed doubt that A1 had any well-founded fear of harm from either her husband or brother in the absence of any reliable evidence of any harm or threats from them other than some hearsay information from her friend, that without any official involvement that state and police protection would be available to her that her non-refoulement claim for protection failed on all the applicable grounds.

14.On 21 February 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 as follows:

“ to appeal and review and to reject the decision made by the immigration department against my claim. They disregard our dangerous situations that includes my daughter Said Ammara.”

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulemetn claim, as the proper occasion for an 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.

16.As noted above the Applicants did not put forward any grounds for their intended application, nor did they identify any error of law or procedural unfairness in the Board’s decision, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

17.Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, 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 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.

19.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 2^nd day of July 2020.

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