KARTININGSIH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1833/2019

[2024] HKCFI 2502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1833 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Ms Kartiningsih (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 25 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 November 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is an Indonesian.  She was born on 22 December 1979 in Jawa Timur, Indonesia. 

3.  She received 12 years of education and had 16 years of work experience as a foreign domestic helper in Hong Kong. 

The Claim

4.  The Applicant first came to Hong Kong to work as a foreign domestic helper in 1999.  She met her boyfriend (“SM”) when she returned home for vacation in 2003.  She maintained her relationship with SM while working in Hong Kong.

5.  SM started asking the Applicant for money in around 2008.  She agreed and gave him most of her earnings.  She returned to Indonesia in August 2012 and became pregnant.  SM became verbally and physically abusive towards her. He sometimes slapped, punched and kicked her.  She gave birth to their son in April 2013 and asked to break up with SM because of his abusive behaviour.  She was also concerned with her own safety because she learnt that SM was engaged in fights, kidnappings and murder as a member of a gang.

6.  SM did not agree to her proposal to break up and attacked her on several occasions.  In a night in 2013, he beat her and broke the items in her home.

7.  On the next day, five strangers said to be friends of SM came to her home and said that SM borrowed IDR 50 million from them to enable the Applicant to work in Singapore.  She explained that she never worked in Singapore but they still asked her to pay back the loan or she would be killed.  She reported those men to the village police station but the police refused to accept filing of a report, stating that there was lack of evidence and she should just comply with their demand.

8.  In the next morning, SM and his friends broke into the Applicant’s home and beat her.  Her post-cesarean stitch wound was opened and she became unconscious.  She later woke up in the village clinic and was told that she was beaten up for ten minutes and lost consciousness for a few hours.  She was only saved when her neighbours took her to the clinic.  It took her about two weeks to recover.

9.  Her neighbours told her that the assailants threatened to kill her and her family members if she did not pay back the loan within 2 weeks, so she handed IDR 2 million to SM after she recovered.  The Applicant reported the attack to the police in Jakarta but the police refused to accept filing of a report, citing lack of evidence.

10.  A few days later, SM drove a car to hit the rear of the Applicant’s motorbike.  He beat her when she was injured and lying on the ground.  He kicked her on her hand and yelled why she was not dead already.  Other passers-by had to intervene and SM drove off.  The Applicant was hospitalized in the village clinic for 3 days and it took her 2 to 4 days to recover.

11.  After being discharged from the clinic, she stayed with a friend in Mergan, Malang which was about 20-minute walking distance from the Applicant’s family home.  When she was in Malang, SM broke into the Applicant’s family home to look for her.  After staying with her friend for 3 or 4 months, the Applicant decided to take up employment again in Hong Kong.  She stayed at the employment agency while waiting to work in Hong Kong.  She did not encounter SM or his friends after the motorbike incident.

12.  The Applicant claimed that she was in fear of being harmed or killed by SM and his friends if she returned to Indonesia.

Procedural history

13.  The Applicant last entered Hong Kong to work as a foreign domestic helper in September 2013.  Her contract was terminated in June 2015 and she was given permission to stay until 3 July 2015.  She did not leave by 3 July 2015 and overstayed in Hong Kong.  She surrendered to the Immigration Department on 3 November 2015.  By a written representation of 31 July 2017, the Applicant lodged the Claim. 

14.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

15.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

16.  On 2 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.

17.  The Applicant filed her supporting affirmation on 2 July 2019 (“Supporting Affirmation”).

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there was no substantial ground for believing that there would be any real and substantial risk of the Applicant being harmed or killed by SM or his friends upon her return to Indonesia.

19.  The Director considered that the injuries suffered by the Applicant from previous attacks did not attain a minimum level of severity.  Despite threats to harm her family members, her family continued to reside in the same home without ever being harmed.  Further, if the motive of SM and his friends was to extract money from her, it would not be in their interest to seriously harm her.  Lastly, years had passed since her last encounter with SM or his friends and it was doubtful whether they would still be interested in locating her.

20.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some problems with competence within the Indonesian authorities when it came to protection against domestic violence.  However, there were objective indications in COI that the Indonesian authorities took steps to improve the police force.  Further, there were other avenues for the Applicant to seek protection in Indonesia, such as the integrated service centres for women and children operated by the government.  COI also showed that there were avenues to seek redress in the circumstances where the Applicant encountered corrupt police.

21.  The Applicant was not being targeted by the Indonesian police or that the Indonesian government had any adverse interest in her.  Her problem with SM and his friends was personal in nature.  There was no indication that the state was involved in, indifferent to, or had provided any form of encouragement to SM or his friends to inflict the feared ill-treatment on the Applicant.  The Director assessed that reasonable state protection would be available to the Applicant if she encountered problems after she returned to Indonesia.

22.  The Director further found that internal relocation would be viable. The Director noted that SM and his friends were not able to locate her after she had moved to a house some 20 minutes away on foot.  It was highly doubtful that they would have the necessary resources to locate her if she moved further away.  If she moved to Jakarta or Bandung, SM or his friends would have great difficulty in locating her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life. 

23.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

24.  The Board after considering the Applicant’s claims including her written representation, her claim form, the record of her interview with the immigration officer, her notice of appeal and her oral evidence given at hearing before the Board, accepted her factual assertions.

25.  The Board noted that SM might have conspired with his friends to extort money from the Applicant.  The ill-treatment she received was calculated to pressure her into paying money to SM and he did not intend to seriously harm her.

26.  The Board therefore held that the threats she faced from SM were not so serious that would qualify her for protection under any of the applicable risks of harm and her claim failed.

27.  The Board further held that from COI reports, the Indonesian government had taken serious measures to improve the police and to protect the human rights of its citizens.  The Applicant could seek assistance from higher authorities to complain about police inaction.

28.  On the issue of internal relocation, the Board found that the Indonesian government was not involved with her dispute with SM and his friends. Indonesian has a vast land area of over 1.9 million sq km and a population of over 261 million.  It would be extremely difficult for SM to locate her in other parts of the country.  In fact, SM was not able to locate her when she stayed in her friend’s place in Mergan, Malang for 3 to 4 months.  With her age, education and work experience, it would not be unduly harsh to expect her to move to another place in Indonesia to avoid SM or his friends.

29.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.  

Legal principles applicable to judicial review

30.  In a judicial review, the court does not step into the shoes of the decision makers.

31.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

32.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

33.  In the Supporting Affirmation, the Applicant raised the following complaints:

(1)  She lodged the Claim on 3 November 2015 which was refused only by 30 November 2018.  There was substantial delay in processing the Claim.

(2)  The hearing bundle was given to her just one week before the appeal hearing and the skeleton submissions of the Director was given to her just a few days before the hearing.  The majority of the documents were in English and she had only limited skills in English.  She was confused in terms of what was happening.  She said that the lack of care by the Board to make appropriate arrangements in relation to the hearing bundle rendered the hearing unfair.

(3)  The Board did not inform her by phone the issuance of the Board’s Decision on the date of issuance and she did not receive the same until 4 days later.

(4)  She was aggravated that her credibility was found questionable.

(5)  The Board significantly relied on source of news which is not officially recognized, hearsay or outdated.

(6)  Her BOR 2 risk claim had not been screened by the Immigration Department.

(7)  The Appeal was refused on unacceptable and unexplainable grounds.  The Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation.  She asserted that: “To understand my claim fairly, my immigration officer and the Adjudicator are invited to tour my country and ask those familiar with his case what real danger I would face if I am returned there.” (§15 of the Supporting Affirmation)

34.  The Applicant surrendered to the Immigration Department on 3 November 2015.  According to §1 and §9 of the DOI Decision, the Applicant made the current non-refoulement claim, ie the Claim, on 31 July 2017 by way of a written submission.  The DOI Decision was issued on 30 November 2018, ie about 1 year and 4 months after the Applicant’s written submission.

35.  The Applicant attended the hearing before me on 29 August 2024 (“Court Hearing”) and confirmed that she had only made one non-refoulement claim.  If so, according to records of the Immigration Department, her claim was made in 2017 instead of 2015.

36.  She further confirmed that she had been released on recognizance shortly after her surrendering to the Immigration Department until the Court Hearing. 

37.  There are many pending claims for non-refoulement protection.  The Director had to deal with a large number of cases with limited resources.  It took the Director 16 months to investigate and decide the Claim is understandable.  I do not agree that there was delay on the part of the Director in handling the Claim.  Furthermore, the Applicant has been released on recognizance pending determination of the Claim.  I do not see that the length of time taken up by the Director in processing the Claim has caused any prejudice or unfairness to the Applicant.  In the circumstances of this case, I do not agree that the length of time taken up by the Director in processing the Claim will per se render the Board’s Decision liable to be quashed by this court.

38.  The Applicant complained that the hearing bundle and the Director’s skeleton submissions were provided to her only a week or a few days before the hearing for the Appeal with a weekend intervening, leaving her insufficient time to prepare for the hearing. The documents were substantially in English which she was not familiar with and she could not afford interpretation service.

39.  It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  She has to live with or cope with her language disability.  She cannot expect to have the luxury of having every document translated into her native language for her benefit as and when she requires.  She has to find assistance herself from among her friends and her ethnic community.  I note that the Applicant had affirmed the Supporting Affirmation which was in English without interpretation service and she had lodged a written submissions date 13 August 2024 with the court (“Submissions”) also in English.  The Applicant confirmed at the Court Hearing that she understood the contents of the Supporting Affirmation and she wrote the Submissions.  These show that although she may not be fluent in English, she does have the ability to understand ordinary English.

40.  The hearing bundle should be made up of her claim form, the record of her screening interview, the DOI Decision, the COI and her notice of appeal.  The Applicant knew what was contained in her claim form and her notice of appeal which were filled in by her.  She knew what was contained in the record of screening interview which she attended with the assistance of an interpreter.  The record should have been read back to her in her own language before she signed the same. Recognizing the limitation in her English language ability and importance of her claim, she ought to have taken notes, at least very brief ones, to remind herself what had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  At the Court Hearing, the Applicant was unable to identify any document in the hearing bundle which she had difficulties to understand because of the language problem. 

41.  I see no merits for the Applicant to argue that the lack of language assistance had jeopardized her rights in this case.

42.  The Applicant had received the hearing bundle one week before the hearing and the Director’s skeleton submissions a few days before the hearing.  The period might be short but the Applicant should not have indulged herself for the weekend and forgotten about her appeal as if she was a tourist visiting Hong Kong. Furthermore, time should start to run from the date of her notice of appeal, i.e. 12 December 2018.  The oral hearing was held on 15 April 2019.  In between, the Applicant had more than 4 months to find out what the appeal bundle was about.  If she needed more time for preparation.  She could have raised that with the Board at the hearing but the Applicant confirmed at the Court Hearing that she did not make any request for adjournment to the Board on the ground of insufficient preparation time or language problem.

43.  In §43 of the Board’s Decision, the Board recorded that:

“At the hearing, the Appellant adopted all the information contained in the Hearing Bundle and confirmed that they were all true and correct …”

44.  Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and she did not raise any such issue during the hearing before the Board when she was able to give evidence and make representation of her case to the Board without any problem, I do not find any merits in this complaint of the Applicant.

45.  The Board’s Decision was issued on 25 June 2019 and the Applicant received the same on 29 June 2019, ie in 4 days’ time.  I see not delay in sending the Board’s Decision to the Applicant.  The Applicant in fact filed the Form 86 herein on 2 July 2019.  No prejudice was caused to the Applicant by sending a copy of the Board’s Decision to her by post.  This was agreed by the Applicant at the Court Hearing.  I see no substance in this complaint of the Applicant.

46.  In the Supporting Affirmation, the Applicant stated that “it aggravates him [sic] that his [sic] credibility was found questionable.”  Nowhere in the Board’s Decision did the Board question the credibility of the Applicant.  The Board accepted the Applicant’s evidence and found that SM had conspired with other to extort money from the Applicant when she suggested that she wanted to break up with SM and the threats by SM and his friends and the attacks, were all measure to extort money from the Applicant.  As the Board had not questioned the Applicant’s credibility, there is no basis for the Applicant to rely on this ground to apply for judicial review against the Board’s Decision.  

47.  The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated.  COI by nature is hearsay evidence.  The COI considered by the Director had been listed in the List of References annexed to the DOI Decision.  They were included in the hearing bundle and considered by the Board.  They came from official websites of government authorities, international organizations and newspapers.  They included publications up to February 2018 when the oral hearing before the Board took place in April 2019. They were not outdated.  The Applicant confirmed at the Court Hearing that she did not seek to adduce any more up-dated COI at the hearing before the Board and she further confirmed that she did not have any up-dated COI to produce to this court for the Court Hearing.  I see no merits in this complaint of the Applicant.

48.  The Applicant complained that her BOR 2 risk claim had not been screened by the Immigration Department.  This is plainly wrong.  In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds under the USM including (but not limited to) right to life under Article 2 of BOR. More detailed discussions on the BOR 2 risk claim were set out in §§20 to 23 of the DOI Decision.  The Applicant’s BOR 2 risk had also been considered by the Board in §§15-16 and §60 of the Board’s Decision.  I find this ground for the intended judicial review wholly devoid of merits.

49.  The Applicant said that the Appeal was refused on unacceptable and unexplainable grounds.  She also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding her situation.  The Applicant provided no particulars or specifics to substantiate these complaints.  She said that the Director and the Adjudicator should have visited her country to understand her claim. 

50.  There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim.  The burden is on the Applicant to prove her claims while the Director and the Board should have conducted proper enquiries into current and relevant COI as regard her home country in their assessment and determination of her claims which the Director and the Board had done in this case.

51.  In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.

52.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

53.  In the Submissions, the Applicant stated that:

“I dont [sic] want go back Indonesia, because my life very danger, because of my loan sharks will kill me, because I’cant [sic] pay the debt I dont [sic] have money to pay the debt. And I’m already married in Hong Kong now I’m waiting visa now. Please save my life from a loan sharks. Please give me live in Hong Kong, because only in Hong Kong I feel savety [sic].”

54.  The fact that the Applicant has been married in Hong Kong is not a ground for seeking non-refoulement protection.

55.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

56.  The Board found that the Applicant’s case was only a case of money extortion from the Applicant by her ex-boyfriend.  The ill-treatment inflicted on her did not fall within the meaning of “torture” under section 37U(1) of the Ordinance.  The Board found that the Applicant had failed to establish that there were substantial grounds for believing that she would be liable to be subjected to torture if she were sent back to Indonesia.  The Board did not find that the Applicant would be subjected to the kind of ill-treatment contemplated in BOR 3 or her life would be at risk had she been sent back to Indonesia.  Her case had nothing to do with the issue of race, religion, nationality, membership of a particular social group, or political opinion and thus not covered by persecution risk.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

Conclusion

57.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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