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HCAL 852/2017
[2018] HKCFI 1457
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 852 of 2017
BETWEEN
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Wiwin Rudianingsih |
Applicant |
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and |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 42-year-old national of Indonesia who arrived in Hong Kong on 30 May 2008 with permission to work as a domestic helper until the expiration of her employment contract on 30 May 2010 or within 14 days of its early termination, but when her contract was prematurely terminated on 18 June 2008, she did not depart and instead overstayed until 17 July 2014 when she surrendered to the Immigration Department, and on 13 May 2014 she raised her non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father and brother for marrying a non-Muslim in Hong Kong. She has since been released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Ronggowuni, Wlingi, Blitar, Indonesia to a family of devoted Muslims and where her father was the leader of a mosque in the village. After leaving school the applicant moved to Desa Kalirejo where she worked in the factory and later as a domestic helper. In 1997 she married her former husband and gave birth to a daughter in 1999.
3. In 2008 the applicant came to Hong Kong to work as a domestic helper when she met her present husband a non-Muslim Indian. In 2009 she heard that her husband had an affair with another woman in Indonesia, and in 2010 they divorced each other in Indonesia with the assistance of her parents as she was in Hong Kong.
4. In 2011 when the applicant informed her family on the phone of her intention to marry her present husband in Hong Kong, her father was unhappy that he was a non-Muslim and threatened to disown her, whilst her brother even threatened to kill her if she went ahead to marry a non-Muslim. The applicant has since not contacted her father or brother again, but married her present husband through some religious ceremonies on 19 January 2012 which was subsequently registered at the Marriage Registry on 18 May 2012. Later in the same year she was told by her friend in Indonesia that her family had moved to another village and that her father had threatened to kill her if she returned to Indonesia, for which she subsequently raised her non-refoulement claim and completed her Non-refoulement Claim Form on 7 January 2016 with legal representation from the Duty Lawyer Service.
5. By a Notice of Decision dated 17 June 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found on the facts of the applicant’s case that the alleged threats made by her father and/or brother directly to her happened only once on the phone whilst all the others were based on hearsay, that whatever dispute she may have with her father or brother is a private family matter without any involvement of the state or the police that state protection would be available to her if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 256 million people spread across a vast territory of more than 1.9 million square kilometers that the applicant can move safely to other areas away from her home district such as Jakarta beyond the capability or resources of her father or brother to locate her.
7. By a Notice of Further Decision dated 17 July 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
8. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, for which she filed her appeal on 28 June 2016, and for which she attended an oral hearing on 5 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 3 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.
9. In its decision the Board found on the evidence and information before it that the risk of the applicant would be subject to harm by her father or brother as low and would even be less than remote if she were to relocate to a place outside her home area of Blitar or Malang, and that in any event state protection would be available to her if resorted to upon her return to Indonesia.
10. On 7 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:
(1) procedural impropriety in the adjudicator’s failure to properly consider her fear from her father and brother arising from her marriage to a non-Muslim as genuine in his assessment of her claim;
(2) procedural impropriety in the Director’s failure to conduct sufficient inquiry into COI in her home country;
(3) illegality/error/misdirection in law for applying irrelevant considerations; and
(4) for no sufficient basis to conclude that she would not be subjected to torture and/or CIDTP upon her refoulement to Indonesia.
11. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or what irrelevant considerations were applied by them, or in what way did the Director fail to make sufficient inquiry into COI as to the situations in Indonesia when even in the applicant’s own case that her dispute with her father and brother was a private family matter with nothing to do with any situations such as corruptions of the state or police, effectiveness of the government or judicial system, or any human rights violations in Indonesia. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
12. As both the Director and the Board in their decisions accepted the applicant’s marriage to her present non-Muslim husband in Hong Kong as the basis of her claim of fear of harm from her father and brother, but once they were able to establish that state protection and reasonable internal relocation alternatives were available to the applicant upon her return to Indonesia in other areas away from her home district and beyond the capability or resources of her family to locate her, it is plain to me that the Director and the Board were perfectly entitled to conclude that there was no justification to afford the applicant non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526. I therefore do not find any basis or merits in any of these grounds of the applicant.
13. In the premises and having proceeded to consider 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.
14. 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.
Dated the 13th day of July 2018.
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(NG Ka-wing)
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 his solicitors must: |
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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)). |
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Sent to the Applicant on 13 July 2018
Wiwin Rudianingsih
Applicant’s ref. no.:
Nil. |
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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 13 July 2018
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 4004/16/6/194/I362
Director of Immigration
2nd Putative Respondent’s ref. no.:
RBCZ 9002462/17 (formerly RBCZ 2380/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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