RETNO JAHWI v. JAMES JOHN JOLLIFFE, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 2042/2018

[2020] HKCFI 1130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2042 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 was last permitted to remain in Hong Kong as a foreign domestic helper up to the expiration of her employment contract on 18 October 2006 when she did not depart and instead overstayed, and was arrested by police on 10 June 2015 for overstaying and undertaking unauthorized employment for which she was convicted and sentenced to prison, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her abusive step-father.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Plumpungrejo, Sub-district Kademangan, District Blitar, East Java, Indonesia.  Her father died when she was very small, and her mother remarried her step-father in about 1994.

3.  After leaving school the Applicant worked as a domestic helper in her home village.  In about 1995 her step-father started to abuse her by yelling and scolding her over small matters and in particularly when he was drunk.

4.  In 1998 the abuses from her step-father turned for the worse when he tried to sexually molest the Applicant on two occasions when her mother was not at home, but on both occasion the Applicant managed to fight off her step-father and fled to her neighbour’s place, but she did not report either incident to the police nor to her mother.

5.  One night several weeks after the last incident, and during her mother’s absence, her step-father grabbed the Applicant and tried to rape her, but she managed to push him away and fled to her neighbour’s home.

6.  As she was fearful that the abuse would continue, the Applicant therefore left her home village to work in Malang for about one year without incident, and in 1999 she came to Hong Kong to work as a foreign domestic helper.

7.  During her employments in Hong Kong, her step-father however continued to make threatening phone calls to her, and so in 2006 when her last employment contract was concluded but she was unable to find new employment, the Applicant did not depart and instead overstayed until her arrest by the police on 10 June 2015 for overstaying and for undertaking unauthorized employment, for which she was convicted and sentenced to prison, and during which she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 31 August 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 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”).

9.  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 she would be in danger of being harmed by her step-father upon her return to Indonesia, that it is unlikely that her step-father would still have any adverse interest in her after the last incident in 1998, that it was a domestic abuse 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 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 Surabaya where it would be difficult if not impossible for her step-father to locate her.

10.  On 12 September 2017 the Applicant 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 3 July 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board.  On 18 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found the Applicant’s evidence as to her claim of threats from her step-father vague, inconsistent and unreliable that she was not considered as a credible witness, that it found no substantial grounds for believing that she would face a real risk of harm from her step-father upon her return to Indonesia, and that in any event in the absence of any official involvement that state or police protection would be available that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 26 September 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)     misdirection in the Law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;  

(2)      procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3)      irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4)      irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia

(5)      irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

(6)      irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)      procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)      procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9)      procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

13.  These are however all just broad and vague assertions of the Applicant containing several pages of 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 Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to her claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

14.  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 or her 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.

15.  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.

16.  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 already 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 her oral 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.

17.  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 50 – 78 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 with sufficient particularity and elaborations, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.  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, 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.

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