MILAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1511/2018

[2020] HKCFI 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1511 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 40-year-old national of Indonesia who arrived in Hong Kong on 21 August 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 21 August 2017 or within two weeks of its early termination.  However, when her contract was prematurely terminated on 3 July 2016, she did not depart and instead overstayed until 20 July 2016 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesiashe would be harmed or killed by her abusive husband.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Mulyasari Village, Bangodua Sub-district,Indramayu Regency, West Java Province, Indonesia.  After leaving school, she first workedas farmer in her home village, and later as a domestic helper in Saudi Arabia before returning to Bali to work as a cleaner.

3.  In 2012 when she was working in Bali, she met her husband whom she married in December 2012, and after their marriage they moved to reside with the Applicant’s parents in her home village.

4.  After the marriage the Applicant soon discovered that her husband was too lazy to work, and instead indulged in drinking alcohol, and when he was drunk he would become abusive towards her by slapping and pushing her around.

5.  One day in January 2014 when the Applicant was eight months pregnant with their child, her husband again became abusive while drunk and pushed her to fall onto the floor which caused her to subsequently suffer a miscarriage and lost their child.

6.  After the incident the Applicant decided to work as a foreign domestic helper in Hong Kong, which she did on 21 August 2015 when she departed Indonesia to start her employment in Hong Kong, and from her monthly salary she would remit money to her husband in Indonesia.

7.  One day in March 2016 her husband asked the Applicant for HK$4,500 for the purchase of a piece of land for their family, and so she remitted the money to him, but later she was told by her mother that in fact her husband had met another woman and that he had spent the money remitted by the Applicant on his girlfriend.  As a result the Applicant asked for a divorce from her husband, for which he demanded money from her, and when she refused, he threatened to kill her when she returned to Indonesia.

8.  Hence in July 2016 when her employment was prematurely terminated, the Applicant feared that she would be harmed or killed by her husband if she returned to Indonesia, and so she overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 5 January 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 (“HKBOR”) being violated including right to life under Article2 (“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”).

10.  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 there will be any real and substantial risk of her being harmed or killed by her husband upon her return to Indonesia as he was abusive only when drunk and that there was no reliable evidence of any real intention on his part to seriously harm or kill the Applicant, that in any event that it was a domestic family disputes 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 alternativesare available in Indonesia with a large population of 255 million people spread across a vast territory 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 husband to locate her.

11.  On 16 January 2017 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 18 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 20July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In its decision the Board accepted the Applicant’s claimed conflicts and disputes with her husband but found no reliable evidence to suggest any intention of her husband toharm or kill the Applicant or any real risk of her being harmed or killed upon her return toIndonesia, and that in any event with state or police protection as well as reasonable internalrelocation available to the Applicant for her to move safely to other parts of Indonesia away from her home district without any fear of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

13.  On 31 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) that the hearing bundle was given to the Applicant only six days before her appeal hearing with the majority of the documents in English thereby given insufficient time for her to prepare for the hearing or to find an interpreter to assist her in her appeal before the Board; and

(6) that the Board had significantly relied on source of news not officially recognized or was hearsay or outdated resulting the Board making groundless speculations that it would be safe for her to return to her country of origin.

14.  These are however all 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 or the adjudicator had erred in the decision,or in what way did the Board unlawfully fettered its discretion or act in procedurally unfair manner or that its decision was unreasonable or irrational in the public law sense, or which COI were unofficially recognized or hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such 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 with sufficient particularity, I do not find any reasonably arguable basis to challenge the finding of the Board.

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

16.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

17.  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 at heroral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

18.  The fact is that it has been established by both the Director and the Board in their respective 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.

19.  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.

20.  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