ARIS AYUK WAHYUNINGTYAS v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 23/2018

[2019] HKCFI 436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 23 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 36-year-old national of Indonesia who last arrived in Hong Kong on 31 August 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract or within two weeks of its early termination, but when her contract was prematurely terminated on 7 October 2010, she did not depart and instead overstayed in Hong Kong during which she gave birth to a daughter on 26 February 2011.  On 2 May 2012 she surrendered to the Immigration Department and lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her parents for bringing shame to her family for having a child born out of wedlock. She has since been released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Desa Tempursari Kabupaten, Malang, East Java of Indonesia where her parents still live.  After leaving school she started working as a foreign domestic helper in Hong Kong in 2001, and returning to Indonesia every two years to visit her parents.

3.  In about 2007 while working in Hong Kong she met a Pakistani man with whom she later formed a relationship, but when she informed her parents about their relationship during her return to Indonesia in 2010, her parents were unhappy that her boyfriend was of different nationality and disapproved of their relationship.

4.  However, the applicant upon returning to Hong Kong continued with her relationship with her boyfriend, but when she became pregnant with his child, her employment contract was terminated in October 2010, and on 26 February 2011 she gave birth to her daughter. Shortly thereafter her boyfriend told her that he was going to visit his family in Pakistan but had since never resumed any contact with her.

5.  In March 2011 the applicant informed her parents of her situation in Hong Kong and asked to return home in Indonesia with her daughter, but was rejected by them for bringing shame to the family and the religion of Islam for bearing a child out of wedlock and without a husband, and warned her not to return to Indonesia as otherwise they would kill her and her daughter.  As a result the applicant raised her non-refoulement claim for protection with the Immigration Department, for which she later completed a Non‑refoulement Claim Form on 11 April 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

6.  By a Notice of Decision dated 16 May 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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed by her parents upon her return to Indonesia due to the absence of any real or past ill-treatment from them, that her problem with her parents is a private family matter 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 where it would be difficult if not impossible for her parents to locate her.

8.  On 29 May 2017 the applicant 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 15 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 December 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found that the applicant may have exaggerated her claim of fear of harm from villagers from her home village but accepted her claim that her parents had rejected her relationship with her boyfriend and her subsequent birth to her daughter out of wedlock, and that they had threatened her not to return home to Indonesia for bringing shame to her family and to their religion of Islam, but given the passage of time after all these years and the absence of any history of violence in her family that it considered not a real chance of her parents harming her or her daughter if refouled to Indonesia, or that they would face any social harassment or discrimination in Indonesia as a single mother or a child without a father, or that any such harm would amount to any of the proscribed harm, and concluded that the applicant’s claim failed on all applicable grounds.     

10.  On 5 January 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 ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she merely stated as follows:

“ I would like to apply for judicial review as my problem is still not solved. Please review my case as my life will be in danger if I go back to my country. Indonesia is a Muslim country and if I go back I and my daughter will be persecuted. Please review the decision by Immigration and Torture Claims Appeal Board and save our lives.”

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement 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 Re Litoun Mounsy [2018] HKCA 537.

12.  In the applicant’s case, the Board accepted her alleged fear of harm from her parents if refouled to Indonesia but rightly rejected her non-refoulement claim on all applicable grounds for the careful and detailed analysis and reasons set out in paragraphs 25 – 52 of its decision, and in the absence of any legal error shown by the applicant in the decision, I am unable to see any prospect of success in her intended challenge.

13.  Furthermore, the fact that it has been established by the Director in his 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 relocate to other part of Indonesia, and which decision was confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  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.

15.  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