KHOMARIYAH-BT-SURYAT-TUKIJAN v. DIRECTOR OF IMMIGRATION

HCAL 154/2018

[2020] HKCFI 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 154 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 ofthe decision of Torture Claims Appeal Board dated 4 August 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the Applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.   The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 18 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 29 October 2016 or within 14 days of its early termination, but when it was prematurely terminated on 19 November 2014, she did not depart and instead overstayed and was detained by Immigration Department on 5 November 2015 when she applied for the birth certificate for her daughter after giving birth to her on 29 September 2015 in Hong Kong.  The Applicant then raised a non-refoulement claim for both herself and her daughter on the basisthat if they returned to Indonesia they would be harmed or killed by Muslim villagers in her home village for giving birth to a child out of wedlock.  They were subsequently released on recognizance pending the determination of their claim.

2.  The Applicant was born and raised in Village Kebonagung, District Blitar, East Java, Indonesia.  After leaving school she got married and had a son, but in 2008 she divorced her husband who was given their son’s custody.

3.  After her divorce the Applicant went to work as a sales assistant in Bahrain until 2012 when she returned to Indonesia for training to be a foreign domestic worker before coming to work in Hong Kong in October 2012 for her first employment contract.

4.  Whilst in Hong Kong she formed a relationship with a Pakistani man, and upon completing her first contract and after signing her second contract in October 2014, she discovered that she was pregnant with her daughter which caused her second contract to be terminated on 19 November 2014, but when she told her parents in Indonesia of her pregnancy, she was warned by them not to return to her home in Indonesia as she and her daughter would face the risk of being harmed by the Muslim villagers who regarded unwed relationships as sinful.

5.  Fearing for her own safety, the Applicant therefore did not return to Indonesia and instead overstayed in Hong Kong and gave birth to her daughter on 29September 2015, and when she tried to apply for her daughter’s birth certificate on 5 November 2015, she was arrested for overstaying in Hong Kong when she then raised a non-refoulement for herself and her daughter, for which she completed a Non-refoulement Claim Form on 6 May 2016 for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 8 November 2016 the Director of Immigration (“the Director”) rejected their 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 (“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 their claim and found no substantial grounds for believing that there will be any real risk of the Applicant and her daughter being harmed or killed by the Muslim villagers in her home village upon their return to Indonesia due to absence of any past ill-treatment from them,that there is no evidence of any threats or risk of harm from those villagers other than the Applicant’s own speculation based on hearsay from her parents, that in the absence of any official involvement that state or police protection would be available to the Applicant and her daughter if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that Indonesian government and NGO in Indonesia have provided assistanceand protection for women in their situation against discriminations and persecutions, as well as the availability of reasonable internal relocation alternatives 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 with her daughter 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 those Muslim villagers to locate them.

8.  On 18 November 2016 the Applicant lodged an appeal for herself and her daughter to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 5 July 2017 before the Board during which the Applicant gave evidence and answered questions put to her by the adjudicator for the Board. On 4 August 2017 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted that the Applicant may have given birth to two children out of wedlock in Hong Kong but had significant concerns about her credibility as to her real reason for refusing to return to Indonesia or that she has not married the fatherof her children despite still living together when it would have easily eliminated her alleged risk of harm from the Muslim villagers, and that in any event there were reliable COI to show that Indonesia government and other organizations can provide help and shelter for theApplicant and her daughter in similar situation, and that such social stigma and discrimination do not amount to any of the applicable risks that would warrant or justify non-refoulement protection in Hong Kong for the Applicant and her daughter.

10.  On 2 February 2018 the Applicant filed her Form 86 for herself only for leave to apply for judicial review of the Director’s decision, but as that decision has since been superseded by her subsequent appeal to the Board, I propose to treat her present application as one for judicial review of both decisions but for the reason given below shall focus on her intended challenge of the Board’s decision, for which she did not put forth any grounds for seeking relief in her Form 86, and in her supporting affirmation of the same date she merely stated that she is now the mother of two children born in Hong Kong that she did not want to be separated from her family, and hence she asked that her claim be re-considered.

11.  By then the Applicant was however already three months late with her application,as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 4 November 2017, the Applicant was therefore about three months late with her 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of three months cannot be said to be insignificant or insubstantial, for which she did not provide any explanation, and hence I am unable to see any good or valid reason for her delay.

14.  As for the merits of her intended application, as held in Re Moshsin Ali [2018] HKCA 549, the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, as the Director’s decisionwill have been superseded by the Board’s decision, and hence it is not open to the Applicant to challenge the Director’s decision by way of judicial review.

15.  As for her intended challenge of the Board’s decision, as noted above the Applicant did not put forward any ground or identify any error in law or procedural unfairness or irrationality in the decision, or even any particulars or elaboration as to why the decision may be considered as unfair or unreasonable.  In the absence of any error of law or procedural unfairness in her process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  In the premises and having considered the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on its part to apply high standards of fairness in its consideration and assessment of the Applicant’s claim.

17.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her significant delay,I accordingly refuse to extend time and dismiss 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