KORIATUL KAROMAH v. DIRECTOR OF IMMIGRATION

HCAL 1392/2018

[2020] HKCFI 131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1392 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 13 October 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 November 2009 or within 14 days of its early termination, but when her contract was prematurely terminated on 25 December 2008, she did not depart and instead overstayed until she was arrested by Immigration Department on 3 September 2014 for overstaying and for undertaking unauthorized work for which she was subsequently convicted and sentenced to prison, and upon her release she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive step-mother.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Malang, East Java, Indonesia and was raised by her father and her step-mother.  After her father died from an illness in 1986, her step-mother started to treat her badly by failing to give her sufficient food or medicine when she was sick, and by forcing her to work their household chores after school, and after completing her primary school, her step-mother did not allow to go on to secondary school, and instead required her to work all day in the rice field from dawn till dusk, and afterwards would lock her in her bedroom, and would beat her with a wooden stick at will.

3.  In 2004 the Applicant decided to escape from her step-mother’s ill-treatments by sneaking out of the house one day when she heard her step-mother yelling from behind that she would be killed if she dared to return.

4.  The Applicant then made her way to Surabaya where she worked in various manual jobs, and in 2006 she decided to apply to work as a foreign domestic helper in Hong Kong,for which she started to receive training, and on 14 February 2007 she departed Indonesia for Hong Kong to start her employment contract, but when her last contract was terminatedon 25 December 2008, she overstayed in Hong Kong until her arrest by Immigration Department in September 2014 for undertaking unauthorized work and for which she was subsequently convicted and sentenced to prison for five months, and upon her release from prison and was due to bedeported from Hong Kong, she raised her non-refoulement claim for protection, for which shecompleted a Non-refoulement Claim Form on 7 July 2017 and attended screening interviewbefore the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 9 August 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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that her perceived fear of harm from her step-mother is real and foreseeable upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from her, that after all these years that it was doubtful that her step-mother would still have any adverse interest in her, that in any event it was a private domestic dispute without any official involvement that state or police protection would be available to the Applicant 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 258 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Indonesia away from her home district in large cities such as Jakarta or Surabaya where it would be difficult if not impossible for her step-mother to locate her.

7.  The Applicant then 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 26 March 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 8 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board was prepared to accept the Applicant’s claim to have been ill-treated by her step-mother after the death of her father, that she had run away from her step-mother out of her fear of her ill-treatments, but given the passage of time since her last contact with her step-mother in 2004 and with no further contact or information as to what has happened to her step-mother, it found no reason why the Applicant cannot safely returnto Surabaya where she had lived for three years without incidents prior to her departure, orto other parts of Indonesia where she will not face any real risk of harm from her step-mother that her claim for non-refoulement protection failed on all applicable grounds.   

9.  On 16 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no proper ground for seeking relief was given in her Form other than her claim that it was a travesty of justice and contrary to natural law and spirit of common humanity and brotherhood to refuse her claim and evict her out of Hong Kong without providing any particulars or specification or elaboration as to how it was so.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her to challenge the findings of the Director or the Board.   

10.  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.

11.  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 a localized one and that it is not unreasonable or unsafe for her to return to Surabaya or 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.

12.  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 Applicant’s claim.

13.  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.

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