|
HCAL 2903/2018
[2021] HKCFI 2682
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2903 of 2018
BETWEEN
|
Khosidatun |
1st Applicant |
|
Danish Aayan Danis Mehmood |
2nd Applicant |
|
Mahmood Azizan Danish |
3rd 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:
Order by Deputy High Court Judge P. Li:
Application for leave to apply for Judicial Review be dismissed for the 1st to 3rd Applicants.
Observations for the Applicants:
1. The 1st applicant (A1) last came to Hong Kong on 15/10/2011 as a domestic helper. Her contract was terminated early on 16/4/2012. She overstayed until 18/7/2012 before surrendering to the Immigration Department. She gave birth to the 2nd applicant (A2) on 2/12/2012.
2. She filed the non-refoulement claims in this case on 23/9/2013 jointly with A2. Later on 8/12/2016, she gave birth to the 3rd applicant (A3). She filed the non-refoulement claim on behalf of A3 on 20/2/2017. [1]
3. The non-refoulement claim for A1—A3 was dismissed by the Director on 4/9/2017. Their appeal was dismissed by the TCAB on 18/9/2018.
4. She filed the leave application on 18/12/2018.
Background
5. The applicant was born on 6/6/1984 in Jawa Tengah, Indonesia. She was a Muslim. She had education for 9 years. She was a shop assistant for one year. She was a domestic helper in Singapore, Brunei and Hong Kong for about 10 years. She married in Hong Kong on 27/6/2017 with a Pakistani. There was a Muslim ceremony. She gave birth to her sons (A2 & A3) in 2012 and 2016 respectively.
6. In 2010, while she was in Hong Kong, her mother told her to marry a rich old man in Indonesia. She refused. Her mother threatened to kill her. She cut the contact with her mother since then. She maintained contact with her sister-in-law.
7. In 2011, she developed a relationship with a Pakistani in Hong Kong. Her contract was terminated early in April 2012. She was pregnant around that time. She informed her sister-in-law who told her brother. He was very angry alleging that she had betrayed her religion and brought shame to the family. She did not report her mother and brother to the Indonesian police as they were corrupt.
8. She was unable to find another contract and overstayed in Hong Kong. She knew her mother and brother were still angry with her. Her life would be in danger if she returned to Indonesia. She could not relocate as she had no relatives elsewhere in Indonesia.
The Decision of the Director in relation to A1—A3
9. The Director found that there was no real risk that A1—A3 be harmed or killed by the mother and brother of A1 for the following reasons:
(a) A1 had never suffered any injury from her mother or brother arising from her marriage and giving birth to A2 and A3. There was only verbal threat in 2010. There was no injury of ‘a minimum level of severity’.
(b) There was no public official involved. The threat was localized and her mother and brother would not have any resources to locate her elsewhere in Indonesia.
(c) The applicant was able to obtain a valid passport. She was never targeted by the government.
(d) The Director accepted that there was endemic corruption and abuses of human rights. Domestic violence against women was common. However, there were practical measures by the government to protect its citizen. The KPK[2] had carried out investigations and prosecutions of corruption at all levels of the government. The police had established Coordination Network for the Elimination of Domestic Violence. There were NGO which provided services and network available to assist victims of domestic violence.[3] There were organizations providing psychological support and literacy training to female heads of households as well as those in destitute.[4] The Director concluded that there was reasonable State protection.
(e) The law in Indonesia allowed relocation. There were organizations to help displaced persons, returning refugees and others. [5] It was a country of about 1.9 million km2 with a population of around 260 million. She might move to other cities like Jakarta and Surabaya. The Director concluded that it was not unduly harsh for the applicant to relocate. A1—A3 could seek assistance from various NGO.
10. On 4/9/2017, the Director rejected the claims of A1and A2 on BOR 2, BOR 3 and persecution risk grounds. The Director also rejected the claim of A3 on all grounds.
The Decision of TCAB on the appeal of A1—A3
11. The applicant gave evidence in the hearing fixed on 4/7/2018. The adjudicator rejected the appeal on 18/9/2018.
12. The adjudicator found that A1 was vague and general in her evidence. Her evidence in support of her claim was not credible. As to the claims of A2 and A3, A1 had exaggerated their claims. There was no separate claim of fear and harm by A2 and A3. It relied on the claim of A1. Having rejected the claim of A1, the adjudicator also rejected the claims of A2 and A3. The adjudicator made the following findings:
(a) On credibility
• A1 claimed that her mother had threatened to kill her. The evidence was very vague despite she asserted that her mother had made numerous phone calls. She was unable to provide more detail about the threat in her written claim and the screening interview. [6]
• The evidence did not support that her brother had threatened to harm her. It rather indicated that he did not wish to have any contact with her. She told the Director at the screening interview that her mother and brother did not accept her because she had brought shame to them. There was no threat. [7]
• She told the adjudicator that her brother had beaten her on numerous occasions but she mentioned to the Director that there was only one assault. [8]
• Despite numerous threats from her mother and brother in 2010—2012, she delayed for 10 weeks before filing a claim. It was after her visa had expired. This was inconsistent with her fear of harm.[9]
• In 2013, her sister-in-law told her that her mother and brother were still angry with her. However, there was no threat of harm. In 2015, she last contacted her sister-in-law who mentioned nothing about her mother or brother.[10]
(b) On nationality and discrimination
• The adjudicator had considered the COI about the Indonesian Nationality law. He found that a child born of an Indonesian mother, under a legal or illegal marriage, would entitle to citizenship. While children of unmarried mothers were labelled as illegitimate and experienced social discrimination, there was no evidence that the children were at risk of physical harm. [11]
• The adjudicator also concluded that there was no indication that A2 and A3 would face a real risk of harm because they were of a mixed race background. There was no evidence that A1 would face a real risk of harm because she entered into a mixed race marriage.[12]
• Given the relationship between A1 and her mother and brother, the adjudicator acknowledged that A1—A3 might face difficulties of accommodation, social support and employment opportunities.
(c) BOR 3
• The adjudicator rejected the evidence of A1 that she was under real risk of harm or death from her mother and brother. For the same reasons, the adjudicator rejected the basis of the A2 and A3 in this regard.
• The adjudicator pointed out that there were NGO (PEKKA & ‘Foundation for Noble Work’) which could provide assistance and support to A1—A3. The restriction of women’s participation in the community and workforce was due to long standing traditional values and gender roles. In fact, a majority of Indonesian women faced societal discrimination of this sort.
• The adjudicator concluded that there was no real risk of CIDTP. This ground failed. [13]
(d) Persecution risk
• The adjudicator had rejected the evidence of A1. The adjudicator also rejected the claim that there would be discrimination or persecution because of the background of a mixed race marriage. In the circumstances, there was no well-founded fear of persecution. [14]
(e) BOR 2
• A1—A3 were not charged with any criminal offence in Indonesia. The humanitarian conditions in Indonesia were not so bad as to render a violation of their right to life if they returned to Indonesia. There was no real risk of arbitrary deprivation of life. Given the evidence of A1 was rejected, this ground failed.
(f) Torture risk (A3 only)
• The adjudicator rejected the evidence of A1. There was no involvement of any Indonesian officials or acquiescence by any official. There was no flagrant violation of human rights in Indonesia. There was no real risk of torture to A3.
Judicial Review
13. The applicant filed the leave application on 18/12/2018. In her affirmation, she disagreed with the TCAB decision.
14. In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not follow that the child’s claim would be dismissed as a matter of course. Further consideration of the personal situations of the child is always necessary.[15]
15. In the TCAB decision, the adjudicator had not separately considered the claim of A2 and A3 under different sections. However, a fair reading of the decision showed that the adjudicator was alive to the individual situation of A2 and A3. The adjudicator had considered the issue of nationality, the availability of social support and the possibility of discrimination arising from their parents’ mixed race marriage.
16. The adjudicator had analyzed the evidence of A1 in detail. She was found not truthful. The adjudicator rejected her evidence totally. I agree with this conclusion.
17. In my view, there was no issue specific to A2—A3 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2—A3 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.[16]
18. In my view, there is no error of law and procedure. I also find the TCAB decision reasonable. There is no merit in the intended judicial review.
Conclusion
19. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 8th day of September 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 8 September 2021
Khosidatun
(1st Applicant)
Danish Aayan Danis Mehmood
(2nd Applicant)
Mahmood Azizan Danish
(3rd Applicant)
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 8 September 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8518/17/9/190/I836;
USM 8519/17/9/191/I837; and
USM 8520/17/9/192/I838;
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1738 – 1740/16 (Formerly RBCZ 2001107-8/14 & RBCZ 10573/17 )
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She had filed a torture claim on 26/7/2012. She also filed a torture claim for A2 on 11/3/2013. The torture claim was rejected by the Director on 31/7/2013. In the circumstances, the non-refoulement claim for A1 and A2 would be on BOR 2, BOR 3 and persecution risk only. The non-refoulement claim for A3 would be on all grounds.
See Decision of the Director dated 4/9/2017, §§3—5.
[2] Corruption Eradication Commission.
[3] Women’s Help Desks, Crisis centers in hospitals, Shelters for survivors and legal aid by LBH APIK.
[4] PEKKA and Foundation for Noble Work.
[5] UN High Commissioner for Refugees and the International Organization for Migration.
[6] Decision of the TCAB dated 18/9/2018 §§56—59.
[7] Decision of the TCAB dated 18/9/2018 §§54—55.
[8] Decision of the TCAB dated 18/9/2018 §§70.
[9] Decision of the TCAB dated 18/9/2018 §§71.
[10] Decision of the TCAB dated 18/9/2018 §§72.
[11] Decision of the TCAB dated 18/9/2018 §§75(a) & 75(f).
[12] Decision of the TCAB dated 18/9/2018 §75(f). The Australian government
[13] Decision of the TCAB dated 18/9/2018 §§77—81.
[14] Decision of the TCAB dated 18/9/2018 §§82—85.
[15] Fabio Arlyn Timogan and Others v. Director of Immigration [2020] HKCA 971, §§33-35
[16] Re Jasvir Singh and Others [2021] HKCA 53, per Au JA at §§36—38
|