SULEKHAH AND ANOTHER v. IMMIGRATION DEPARTMENT

HCAL 466/2018

[2020] HKCFI 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 466 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 November 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 37-year-old national of Indonesia who last arrived in Hong Kong on 4 April 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract, but after she gave birth to her daughter, the 2^nd Applicant (“A2”) on 24 March 2016 out of an adulterous affair in Hong Kong and when subsequently her employment contract was prematurely terminated on 10 May 2016, she did not depart and instead overstayed, and on 2 June 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband over her extramarital affairs in Hong Kong, and on 28 February 2017 she also raised a non-refoulement claim for A2 on the same basis, for which their claims were jointly considered and assessed together, and pending their determination they were released on recognizance.

2.  A1 was born and raised in JLN Sedompyong, East Semarang Sub‑district, Semarang Regency, Central Java Province, Indonesia.  After leaving school she married her husband and gave birth to 3 children.

3.  In 2007 she started to work in various odd jobs to help out with her family’s income, and from 2011 to 2013 she worked as a domestic helper in Singapore before coming to Hong Kong in March 2013 to work as a foreign domestic helper.

4.  In late 2013 she formed a relationship with a man in Hong Kong with whom she subsequently gave birth to a son in July 2014, but later when their relationship broke up, she brought her son back to Indonesia in March 2015 to place him in the care of her mother, but when her husband found out about it, he became furious over A1’s extramarital affair that he together with his brother beat her by punching and kicking her all over her body until her mother and neighbours came to her rescue and brought her to the hospital for medical treatments.

5.  Upon discharge from the hospital, A1 then took shelter at her uncle’s place in Jakarta until 4 April 2015 when she returned to Hong Kong to start her next employment contract.

6.  Later in the same year she formed a relationship with another man with whom she subsequently gave birth to A2 in March 2016, and as a result her employment contract was prematurely terminated on 10 May 2016 when she did not depart and instead overstayed as she was afraid that her husband would harm or kill her upon her return to Indonesia with A2 born out of another extramarital relationship in Hong Kong, and after her surrender to the Immigration Department in June 2016, she raised her non‑refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 14 March 2017, and on 23 May 2017 she also completed a NCF for A2, and for which they attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 27 June 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that there will be any real and substantial risk of them being harmed or killed by A1’s husband upon their return to Indonesia due to the absence of or low intensity and frequency of past ill‑treatment from him, that their disputes were private 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 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 her husband to locate them.

9.  On 10 July 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 30 October 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 23 November 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted A1’s claim of having domestic disputes with her husband over her extramarital affairs which had led to an occasion of violence against her, but found no reliable evidence of any real intention on the part of her husband or his brother to cause serious harms to her or A2 let alone to kill them, or that they would continue to post any threats towards them upon their return to Indonesia, and that it was not satisfied that A1 has any real or genuine fear of harm from her husband or for her safety or that of A2 in the event of her return to Indonesia that it concluded that their claim for non‑refoulement protection failed on all applicable grounds.

11.  On 22 March 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 repeated their lives would be in danger that they cannot go back to Indonesia without putting forward any valid or proper grounds for their intended challenge.  Nor did they request any oral hearing for their application.

12.  By then they were also late with their application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for the Applicants to file their Form 86 fell on 23 February 2018, they were therefore one month late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicants’ case, a delay of one month cannot be regarded as insignificant or insubstantial, for which they never provided any explanation, and as the record reveals that the Board’s decision was sent on the same day to their last reported address which is the same as that stated in their Form 86, I do not see any good or valid reason for their delay.

15.  As for the merits of their intended application, as noted above the Applicants did not put forward any proper or valid ground in support, 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 merits in their intended challenge.

16.  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. 

17.  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 in the absence of any good or valid reason for their delay, I refuse to extend time and accordingly their leave application is dismissed.

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