NDUK NING AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1991/2018

[2020] HKCFI 2036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1991 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

Leave to apply for judicial review refused.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 39-year-old national of Indonesia who arrived in Hong Kong on 20 December 2004 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 December 2006 or within 14 days of its early termination, but when her employment contract was prematurely terminated on 8 October 2005, she did not depart and instead overstayed in Hong Kong, during which she formed a relationship with an Indonesian man, out of which she on 13 October 2006 gave birth to a daughter, the 2^nd Applicant (“A2”), and on 30 January 2007 they surrendered to the Immigration Department and raised a torture claim on the basis that if they returned to Indonesia A1 would be harmed or killed by her parents for given birth to a child out of wedlock and/or that they would be harmed or killed by radical Muslims who would not approve such behavior, and after their torture claim was rejected, they then sought non-refoulement protection on the same basis.  They were subsequently released on recognizance pending the determination of their non-refoulement claim.

2.  A1 was born and raised in Temanggung, Middle Java, Indonesia in a Muslim family in which her parents were farmers in their home village.  After leaving school she trained to work as a foreign domestic helper, and on 20 December 2004 she arrived in Hong Kong to start her first employment contract.

3.  However, on 8 October 2005 her contract was prematurely terminated, and while she was looking for new employment, she formed a relationship with an Indonesian man and overstayed in Hong Kong, but when she became pregnant with their child, the man was not pleased and left her, and when she told her parents in Indonesia of her predicament, they scolded her for bringing disgrace to their Muslim family and forbade her from returning to their home, and so after given birth to A2, A1 raised a torture claim for both of them for fear of being harmed by her parents and/or by the Muslims for being an unwed mother and child if they returned to Indonesia, and after their torture claim was rejected, they sought non-refoulement protection on the same basis, for which they completed a Supplementary Claim Form on 12 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 30 December 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the remaining applicable grounds other than torture risk but including 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s parents or radical Muslims upon their return to Indonesia as low due to the absence of any past ill-treatment from them, that the Applicants’ assertion of fear of harm from them is solely their speculation unsupported by any evidence, that in the absence of 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 (“COI”) show that there are laws and provisions in Indonesia to prohibit violence or discriminations against women and children and to provide assistance and services for unwed mothers and their children as well as reasonable internal relocation alternatives 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 safely with A2 to other parts 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 them.

6.  On 13 January 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 23 April 2018 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 6 July 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found no evidence of any real risk of harm from the A1’s parents or the Muslims upon her return with A2 to Indonesia, that in any event after all these years that it is unlikely that her parents would still resent or reject A1 or her daughter, that according to A1 that in fact her father has since passed away, and that based on reliable COI that it did not accept that unwed mothers or illegitimate children would face any real risk of harm in Indonesia that the Applicants’ claim for non-refoulement protection in Hong Kong failed on all applicable grounds.      

8.  On 20 September 2018 A1 filed her Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that their lives would still be in danger in her home country and that she disagrees with the decision but without putting forward any proper or valid grounds for their intended application or identify any error of law or procedural unfairness in their process before the Board or in its decision.  Nor did they request any oral hearing for their application.  As such 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 reasonably arguable basis for their intended challenge.

9.  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.  

10.  Furthermore, 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.

11.  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.

12.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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