JAMILAH v. DIRECTOR OF IMMIGRATION

HCAL 290/2018

[2020] HKCFI 455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 290 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 29 May 2017 refused; and

2.  the application for 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 38-year-old national of Indonesia who last arrived in Hong Kong on 3 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 24 February 2015 or within two weeks of its early termination.  On 7 August 2013 her employment contract was prematurely terminated, and on the following day she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 8 months.  Upon her release from prison but before she was deported, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her parents for refusing to marry the man they had arranged to marry her.  She was subsequently released on recognizance pending the determination of her claim.

2. The Applicant was born and raised in Central Java, Indonesia.  After leaving school she started working as a foreign domestic helper first in Singapore and later in Hong Kong in 2009 where she later met an African man with whom she formed a relationship.

3. In March 2013 while she was visiting her parents in Indonesia during her holiday break from her employment in Hong Kong, she was told by her parents that they had made arrangement for her marriage and introduced her to the man Supri from whom they had borrowed money for her mother’s medical treatment and whom they now proposed for herto marry in lieu of the loan repayment, and when she objected to their proposal and revealed that she already had a boyfriend in Hong Kong, her parents became furious and threatened not to allow her to return to Hong Kong unless she promised to cease her relationship with her boyfriend and agreed to their marriage proposal.  In order to pacify her parents, the Applicant pretended to agree to their demands, and after two weeks she returned to Hong Kong to continue with her employment.

4. However, when her employment contract was prematurely terminated in August 2013 after she was accused of theft by her employer, for which she was subsequently charged,convicted and sentenced to prison, and upon release and before her deportation, as she fearedthat she would be forced by her parents to go through the arranged marriage if she were toreturn to Indonesia, and that she would be harmed by her parents and/or by Supri if she refused to go through their marriage arrangement, she therefore raised her non-refoulement claim for protection in Hong Kong, for which she subsequently completed a Non-refoulement Claim Form on 20 June 2016 and attended screening interview before the Immigration department with legal representation from the Duty Lawyer Service.

5. By a Notice of Decision dated 31 August 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 the Hong Kong Bill of Rights (“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”).

6. 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 she would be in danger of being harmed or ill-treated by her parents or Supri due to absence of any past ill-treatment from them, that there was no reliable evidence to suggest any intention on their part to harm or kill her, that her problems with them were private family or personal dispute 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 256 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 or Supri to locate her.

7. By a Notice of Further Decision dated 24 April 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 applicablegrounds 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 ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 9 September 2016, and for which she attended an oral hearing on 27 April 2017before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 29 May 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found the Applicant’s evidence as to her claim inconsistent and implausible, that it was not satisfied that the Applicant was a reliable witness, and concluded that her claim failed on all applicable grounds. 

10.  On 23 February 2018 the Applicant filed her Form 86 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 stated that the Board’s decision in dismissing her claim was unfair and unreasonable but without providing any particulars or specifics or elaboration as to how it was so.  Nor did she ask for any oral hearing for her application.

11.  By then the Applicant was also out of time 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 within which the Applicant was to file her Form 86 fell on 29 August 2017, she was therefore late by almost six months 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 almost six months must be regarded as substantial, for which she did not provide any explanation, and in considering the merits, if any, of her intended application, as noted above, she did not put forward any proper ground for her challenge other than just claiming that the Board’s decision was unfair and unreasonable without any particulars or elaboration.

14.  As has been repeatedly emphasized by the Court of Appeal, 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.

15.  In the Applicant’ case, the Board rejected her non-refoulement claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 60 of its decision and with the benefits of hearing her in oral evidence and in her answers to questions raised of her claim during her oral hearing before the Board, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

16.  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, a decision also 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.

17.  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.

18.  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 delay, I refuse to extend time and accordingly her 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