Case Document

100%Judiciary

HCAL 1605/2018 & HCAL 2274/2020

[2021] HKCFI 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1605 of 2018

BETWEEN

	Sulrini	1^st Applicant
	Khan Aisyah	2^nd Applicant
	Khan Muzamil	3^rd Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative
		Interested Party

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2274 of 2020

BETWEEN

	Sulrini	1^st Applicant
	Khan Muzamil	2^nd Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	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 the Applicants in open court;

Order by Deputy High Court Judge P. Li:

1. Extension of time for application for leave to apply for Judicial Review be granted for HCAL 1605/2018; and

2. Applications for leave to apply for Judicial Review for HCAL 1605/2018 & HCAL 2274/2020 be dismissed.

Observations for the Applicants:

1.The 1^st and 2^nd applicant filed their non-refoulement claim on 29/10/2015 and 24/3/2016 respectively. Their claim was rejected by the Director on 14/10/2016. Their appeal was dismissed by the TCAB on 19/4/2018. The 1^st applicant filed the leave application for judicial review on 10/8/2018 in her name only. The leave application was about 3 weeks out of time.

2.Before the decision of the above leave application, the 1^st applicant gave birth to the 3^rd applicant on 16/9/2018. Subsequently, the 1^st applicant filed a non-refoulement claim on behalf of the 3^rd applicant on 15/5/2019.

3.On 20/8/2019, Deputy Judge Lung ordered the leave application in HCAL 1605/2018 to be heard together with the pending legal proceedings in relation to the non-refoulement claim of the 3^rd applicant.[1]

4.Eventually, the Director dismissed the 3^rd applicant’s claim on 31/10/2019. His appeal was dismissed by the TCAB on 20/10/2020.

5.On 29/12/2020, this court granted leave for the amendment of the original form 86 in HCAL 1605/2018. The 2^nd and 3^rd applicants were added. It transpired that the 1^st applicant had already filed another leave application (HCAL 2274/2020) on 17/11/2020 jointly with the 3^rd applicant. In hindsight, the order for amendment would not be necessary in relation to the 3^rd applicant.

Background [2]

6.The 1^st applicant was born on 6/9/1974 in Tulungagung District, East Java, Indonesia. She had education for 9 years. She was a Muslim. Her mother and siblings lived in Indonesia. She was a domestic helper in Hong Kong [3].

7.She got married twice in Indonesia (her husbands are referred to as 1^st and 2^nd husband below) [4] and had one son from each marriage (they are referred to as 1^st and 2^nd son below) [5]. Her 1^st husband died in 2003 [6]. She divorced her 2^nd husband in 2012 according to Indonesian law.[7]

8.After her contract was terminated in Hong Kong in October 2014, she cohabited with a Pakistani male (Mr. Khan) who was also a non-refoulement protection claimant.[8] They had a daughter born on 24/1/2016 (2^nd applicant) and a son born on 16/9/2018 (3^rd applicant).

9.The 1^st applicant came to Hong Kong in 1996 under a domestic helper contract. She returned to Indonesia in 2006. She came to Hong Kong again on 24/2/2010 under another domestic helper contract. Her contract was terminated on 11/10/2014. She overstayed until 24/2/2015 when she surrendered to the Immigration Department.

10.After her second marriage in Indonesia in 2006, she discovered that her 2^nd husband was in debt of about 50 million Rupiah [9]. She was in Indonesia and knew about the loan. She repaid 15 million Rupiah for her 2^nd husband.

11.Since 2008, she had frequent quarrels with her 2^nd husband who had no stable job. She was assaulted by him but there was no injury. He threatened to kill her and her 1^st son if she told anyone about the assault or stop repaying the debt for him.

12.Around 2011—2012, she asked for a divorce. Her 2^nd husband was angry. He took her 2^nd son and went back to his parents’ house. However, her 2^nd husband kept on threatening to kill her mother and her 1^st son on the phone.

13.In May 2012, she went back to Indonesia to visit her 1^st son who was terminally ill because of a lung condition. She left for Hong Kong again in June 2012. She instructed a lawyer to divorce her 2^nd husband in July 2012.

14.In September 2012, her 1^st son passed away. She suspected that her 2^nd husband killed her 1^st son with black magic. She did not report to the police. Her 2^nd husband kept on threatening her and demanded her to repay his debt.

15.She last contacted her 2^nd husband in 2013. She stopped repaying his debt then.

16.Her contract was terminated on 11/10/2014. She later cohabited with a Mr. Khan and gave birth to the 2^nd and 3^rd applicants in Hong Kong. The 1^st applicant and Mr. Khan had married under Muslim law at a mosque in Yuen Long on an unknown date.[10]

17.She believed the police in Indonesia would not help her. She could not afford any bribe. She could not move to other cities as there was no connection. She could not earn a living elsewhere in Indonesia.

18.She feared that her 2^nd husband might harm or kill her and the other applicants if they returned to Indonesia.

The Director’s decision dated 14/10/2016 and 31/10/2019

19.In the decision dated 14/10/2016 which only concerned the 1^st and 2^nd applicant, the Director found that the risk of harm was low for the following reasons:

(a) The 1^st applicant was only hit on her head with bare hands in 2008. There was no injury. The 1^st applicant did not suffer any injury amounting to ‘a minimum level of severity’.

(b) The 1^st applicant did not seek protection earlier in 2012. She only filed her non-refoulement claim in 2015 after having overstayed for about 4 months. The Director doubted her credibility.

(c) There was no evidence that her 1^st son died of black magic practised by her 2^nd husband.

(d) Since 2013, she had no contact with her 2^nd husband. There was no evidence that he tried to locate her or the 2^nd applicant. He did not threaten the 1^st applicant’s mother.

(e) Given that her 2^nd husband was only a casual labourer, it was most unlikely that he had the resources to locate the 1^st and 2^nd applicant if they returned to Indonesia.

(f) The marital relationship with her 2^nd husband was a private matter. There was no evidence of any State involvement. She had no difficulty with the Indonesian government in the past.

(g) She had never sought police assistance in Indonesia. There was no evidence that the police would not assist her if she reported.

(h) The Director accepted that there was corruption in Indonesia, however, there was on-going improvement in Indonesia to tackle abuse of police power. There was National Ombudsman Commission to investigate human rights abuse. Corruption Eradication Commission to tackle corruption. There were organizations which assist women and children who were victims of domestic violence in Indonesia. The Director found there was sufficient State protection.

(i) Indonesia was a vast country with huge population. Relocation was permitted. The applicant might move to other cities like Jakarta or Surabaya. The Director concluded that it was not unduly harsh for the 1^st and 2^nd applicants to relocate and avoid the threats. [11]

20.In the decision dated 31/10/2019 concerning the 3^rd applicant, the Director mainly based on the information set out above. In addition, the 1^st applicant learned from her 2^nd son that her 2^nd husband was still angry about the divorce and threatened to kill her. The 1^st applicant was not aware of PEKKA and the Corruption Eradication Commission. She was not confident that these organizations could help.

21.Apart from the findings above, the Director found that her 2^nd husband just forced the 1^st applicant to repay his debt. There was no harm done to the 1^st applicant’s mother who lived nearby throughout these years.

22.The Director noted that in Indonesia, there were established Integrated Service Centers for the Empowerment of Women and Children victims of violence to assist victims. There was no breakdown of law and order. The authorities were able and willing to discharge their duties.[12]

23.The Director dismissed the non-refoulement claims of all applicants on all grounds.

Decision of the TCAB dated 19/4/2018 (HCAL 1605/2018)

24.This decision concerned the 1^st and 2^nd applicants. The 1^st applicant attended the hearing fixed on 20/2/2018. She confirmed the content of the material in the appeal bundle.

25.The 1^st applicant feared that she might be killed or harmed by her 2^nd husband if she returned to Indonesia. While the 2^nd applicant shared the same fear, she was a stateless child and was not an Indonesian citizen. It would be cruel and inhuman to deport her to Indonesia.

26.The adjudicator rejected the claim of both applicants on 19/4/2018. He pointed out the following:

(a) According to Art. 4(7) of the Indonesian nationality law of 2006, the 2^nd applicant was a citizen of Indonesia being a child born out of wedlock from an Indonesian mother. This position was consistent with Art. 4(4) and 5(a) of the same law. [13]

(b) In fact, according to the Pakistan Citizenship Act of 1951, the 2^nd applicant was entitled to Pakistani citizenship as her parent was a citizen of Pakistan.[14]

(c) The 1^st applicant was unable to provide the death certificate of her 1^st son. She only produced a photo which showed a youth with wasting of the limbs. While there was black magic culture in Indonesia, there was insufficient objective evidence to support that her son died of it. There seemed little to gain for her 2^nd husband to kill her 1^st son as his main concern was for the 1^st applicant to pay his debts.[15]

(d) The 1^st applicant was only assaulted by her 2^nd husband with bare hands. There was no attempt to report the assault or the murder by black magic of the 1^st son to any authorities in Indonesia.

(e) The 1^st applicant delayed until 2015 to apply for non-refoulement claim. It was 4 months after her contract was terminated. It was by then 4½ years after she believed her 1^st son was killed by black magic practised by her 2^nd husband in 2012. The delay was illogical. [16]

(f) The 1^st applicant and Mr. Khan had been living as a couple in Hong Kong. They might choose to live in Indonesia or Pakistan according to the respective nationality law. Given the threat from her 2^nd husband was localized, it was viable for the 1^st applicant to relocate with Mr. Khan to large city such as Malang. Mr. Khan could obtain Indonesian residency through spousal sponsorship.[17]

(g) For the 2^nd applicant, the basis of her claim was her fear that the 1^st applicant’s 2^nd husband, who was angry about the divorce and the birth of the 2^nd applicant, might harm her. The factual basis of her claim based entirely on that of the 1^st applicant. Given her entitlement of Indonesian citizenship, the 2^nd applicant might live safely with the 1^st applicant and Mr. Khan in Indonesia. Her claim failed on same reasons as the 1^st applicant.

27.The adjudicator rejected all claims of the 1^st and 2^nd applicant.

Decision of the TCAB dated 20/10/2020 (HCAL 2274/2020)

28.This decision concerned the 3^rd applicant. He was born on 16/9/2018 in Hong Kong. His claim was based on the same factual background of the 1^st applicant. The 3^rd applicant was in fear that he might be killed by the 2^nd husband of his mother (1^st applicant). The specific issue of the 3^rd applicant’s claim was that he was stateless. It would be cruel to remove him to Indonesia.

29.The adjudicator had considered the issue of statelessness. He referred to his decision earlier dated 19/4/2018 in relation to the 1^st and 2^nd applicant. [18] He found that there was no change of the Indonesian law in this aspect. He maintained his view that the 3^rd applicant was an Indonesian citizen. [19]

30.The adjudicator reiterated that the 1^st applicant had not provided convincing evidence to support her claim previously. She did not have any significant update in relation to the claim of the 3^rd applicant.

31.The adjudicator stressed that the 1^st applicant and Mr. Khan had married in Hong Kong under Muslim tradition. Their children (2^nd and 3^rd applicants) were legitimate children. There should not be any discrimination. The 3^rd applicant had both parents together. The adjudicator maintained the conclusion in his earlier decision dated 19/4/2018—relocation to one of the larger towns or cities such as Malang was viable.

32.The adjudicator dismissed the appeal of the 3^rd applicant. There was no evidence of torture by any public official, no evidence of arbitrary deprivation of life, no ill-treatment amounting to a minimum level of severity and no real risk of persecution for a Convention reason. All claims failed.

Judicial review

33.The 1^st and 2^nd applicants applied for leave for judicial review on 10/8/2018 (HCAL 1605/2018). The 1^st applicant applied in her name only and was about 3½ weeks out of time. Both applicants should have applied for extension of time for the leave application. The 1^st applicant only indicated in the affirmation that she disagreed with the decision of the TCAB. There was no explanation for the delay.

34.An oral hearing was held on 29/12/2020. She had nothing further to update. This court allowed her to add the 2^nd and 3^rd applicant’s name in the Form 86.

35.It later transpired that the 1^st and 3^rd applicant had jointly filed another leave application on 17/11/2020 (HCAL 2274/2020). In the affirmation in support, the 1^st applicant reiterated that her 2^nd husband would kill her and her children.

36.In this decision, this court will deal with both leave applications together.

HCAL 1605/2018

37.Both applicants did not apply for leave within 3 months as required, both of them did not provide any explanation for the delay. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application. [20]

38.The leave application (HCAL 1605/2018) was filed on 10/8/2018. At that time, the 1^st applicant was expecting the birth of the 3^rd applicant who was eventually born on 16/9/2018. She attended an oral hearing on 20/8/2019 in relation to HCAL 1605/2018 before Deputy Judge Lung. She was told to wait for the decisions of the Director and the TCAB in relation to the 3^rd applicant. It seemed that she was not aware that her leave application was out of time [21].

39.While there is a delay of 3½ weeks in filing HCAL1605/2018, it is appropriate to consider the claims of all applicants together. The birth of the 3^rd applicant may have complicated the position of the other applicants. Having considered all circumstances, I grant an extension of time for the leave application in HCAL 1605/2018.

40.In relation to the leave application of the 1^st applicant in HCAL 1605/2018, there is no error of law and procedure. I agree with the adjudicator. The evidence of the 1^st applicant did not support any of the non-refoulement claim. I also find the decision reasonable.

41.As to the position of the 2^nd applicant in HCAL 1605/2018, the adjudicator had considered the nationality issue and relocation issue separately with regard to her circumstances. The decision was reasonable. I agree with it.

HCAL 2274/2020

42.In relation to the leave application of the 3^rd applicant in HCAL 2274/2020[22], there is no error of law and procedures. The adjudicator had considered the claim separately. He was aware of the statelessness issue and the relocation issue specific to the 3^rd applicant. The adjudicator had considered the position of the 2^nd applicant again and maintained his findings. He then concluded that the 3^rd applicant failed to establish his claim. I agree with his findings. The decision was reasonable.

Conclusion

43.In my view there is no merit in both leave applications. It was not reasonably arguable. There is no reasonable prospect of success. I refuse leave for both applications.

Dated the 11^th day of March 2021.

(Mike MAK)
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 Applicant: If leave has been granted, the Applicant or the Applicant’s 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 Applicant proposes 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 11March 2021 Sulrini; Aisyah Khan; and Muzamil Khan Applicants’ 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 11March 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 5012/16/10/21/I485; USM 5013/16/10/21/I486; and USM 16495/19/11/53/I1788; Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2035/16 (formerly RBCZ 14085/15); QA T/C 796/19 (formerly RBCZ/10565/19) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] The 1^st applicant had already filed a non-refoulement claim for the 3^rd applicant with the Director. Decision was pending.

[2] The decision of the Director dated 14/10/2016, §§8.1—8.20.

[3] From 1996—2006 and 2010—2014.

[4] 1^st marriage unknown date; 2^nd marriage in September 2006.

[5] 1^st son was born in 1994 and 2^nd son was born in 2007 respectively.

[6] The decision of TCAB dated 19/4/2018, §4.

[7] The decision of TCAB dated 19/4/2018, §53—54.

[8] In the oral hearing at the TCAB, the 1^st applicant confirmed that they got married under Muslim law at a mosque in Yuen Long but could not recall the date. The result of Mr. Khan’s non-refoulement claim was not known. The decision of TCAB dated 19/4/2018, §6, 41, 75—78.

[9] About HK$27,000 at the current exchange rate.

[10] The decision of TCAB dated 19/4/2018, §41.

[11] The Decision of the Director dated 14/10/2016, §§17—23.

[12] The Decision of the Director dated 31/10/2019, §§18—24.

[13] The decision of TCAB dated 19/4/2018, §§39—41.

[14] The decision of TCAB dated 19/4/2018, §42.

[15] The decision of TCAB dated 19/4/2018, §§47—52, 55.

[16] The decision of TCAB dated 19/4/2018, §63.

[17] The decision of TCAB dated 19/4/2018, §§74—78.

[18] The decision of TCAB dated 19/4/2018, §§39—44.

[19] The decision of TCAB dated 19/4/2018, §§32—35.

[20] H v Director of Immigration [2020] HKCFA 22, para 37.