SUMIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 665/2018

[2020] HKCFI 2143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 665 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 Applicant:

1.  The Applicant is a 42-year-old national of Indonesia who first arrived in Hong Kong in 2001 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last contract was prematurely terminated on 8 January 2015, she did not depart and was arrested by police on the same day for theft for which she was subsequently convicted and sentenced to prison for 3 months, and upon her discharge and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by loan sharks for failing to repay her family’s loans.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Indramayu Jabar, Indonesia.  After leaving school she came to Hong Kong to work as a foreign domestic helper in 2001 and had continuously done so, returning to her home in Indonesia only for vacations, with her last home visit took place in 2009.

3.  In 2011 her family in Indonesia had borrowed several loans from the local loan sharks to meet various expenses for repairing their family home as well as medical operations for her parents and elder brother, and for which she had to remit most of her income to her family to assist in their repayments of those loans.

4.  Later in the same year she started to receive threatening telephone calls from those loan sharks demanding repayment of her family’s loans and threatened to harm or kill her upon her return to Indonesia if she failed to do so.  As a result the Applicant became fearful for her safety and stopped returning to her home in Indonesia for her vacation.      

5.  However, when her last employment contract was prematurely terminated on 8 January 2015, and when she was told by her mother that those loan sharks were still looking for her, she decided that it was not safe to return to Indonesia, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 28 April 2017 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 her 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by those loan sharks upon her return to Indonesia due to the absence of past ill-treatment from them, that no harm had ever come to her family in Indonesia shows that it was not the real intention of those loan sharks to harm her, that in any event those were monetary disputes between her family and their creditors with nothing to do with her and in the absence of 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 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 working 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 those loan sharks to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 28 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found serious inconsistencies, confusions and contradictions in the Applicant’s evidence given during her appeal hearing in respect of the various alleged loans from the loan sharks which were fundamentally different from those earlier given to the Director, and in the absence of any satisfactory explanations from her over such serious discrepancies in her claim that it did not accept any of her claims in relation to the existence of any debts in Indonesia for which she may be considered liable, nor did it accept that there was any consistent pattern of ill-treatments previously inflicted on her that may form the basis that she might be at risk of the proscribed harm should she return to Indonesia in the reasonably foreseeable future that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 18 April 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 or her supporting affirmation of the same date, nor did she request any oral hearing for her application, and it was only until 11 May 2020 when she filed a written submission and put forward the following grounds for her intended challenge:

(1) that the Board is in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing her appeal on the ground that they did not satisfy the requirement;

(2) that the Board is in breach of procedural fairness in that its decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(3) that the Board is in breach of procedural fairness in that the majority of the documents in the bundle were in English without translation thereby giving her insufficient time to prepare for her appeal hearing especially due to her limited skills in English and being unrepresented and was unable to find any reasonably cheap interpreter to assist her to prepare for her appeal before the Board;

(4) that it was unfair for the Board to find her credibility questionable despite the fact that she had answered all the questions honestly in an unfair hearing in respect of the late arrangement for the hearing bundle to be provided to her; and

(5) that the Board had significantly relied on the source of news not officially recognized or is simply hearsay or outdated resulting in the lack of credible source of information that it would be safe for her to return to her country of origin.

11.  These are however mostly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board had erred in its decision, or in what way did the Board had unlawfully fettered its discretion or that its decision was unreasonable or irrational in the public law sense, or how it failed to take into account of relevant COI or what information was unofficially recognized or was hearsay or outdated, as none of which was elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for her intended challenge.

12.  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.

13.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her late for her appeal hearing before the Board with documents in English without translations thereby given her insufficient time to prepare for her appeal.

14.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that during her oral hearing when she was assisted by an interpreter, she never raised any issue or requested the Board for further time to enable her to better prepare for her appeal.  In the premises I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

15.  Essentially the Board rejected the Applicant’s claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 57 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision 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 is 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, 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 I accordingly refuse 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