Application for Leave to Apply for Judicial Review

HCAL 2315/2018

[2021] HKCFI 3545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2315 of 2018

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

Following:

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Indonesia who last arrived in Hong Kong on 9 June 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 July 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 9 July 2016, she did not depart and instead overstayed, and on 3 August 2016 she surrendered to the Immigration Department and on 29 November 2016 raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her neighbor for turning down his marriage proposal.  She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Majalengka, Indonesia.  After leaving school she worked as a babysitter in Jakarta before going to Singapore in 2009 to work as a domestic helper, and then in 2013 she came to Hong Kong to work as a foreign domestic helper where she subsequently formed a relationship with a Pakistani man said to be a local resident.

3.  In June 2015 during her holiday back to her home in Indonesia, the Applicant was approached by her neighbor Supri for courtship, and after her return to Hong Kong to continue with her employment, Supri kept in contact with the Applicant, and eventually in March 2016 he made a marriage proposal to the Applicant, and when it was rejected by her, he continued to harass and threaten her by texts and on the phone, and when the Applicant’s last employment contract was prematurely terminated on 9 July 2016, she was afraid to return to Indonesia due to Supri’s threats, and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 17 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  While being released on recognizance pending determination of her claim, the Applicant in May 2017 gave birth to a daughter from her relationship with her Pakistani boyfriend in Hong Kong.              

5.  By a Notice of Decision dated 16 November 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”).

6.  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 and substantial risk of her being harmed or killed by Supri upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Supri to cause any real harm to her other than to put pressure on her to marry him, that it was in any event a private personal dispute between the two of them 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 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Surabaya where it would be difficult if not impossible for Supri to locate her.

7.  On 27 November 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 6 July 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 2 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence of her claimed fear of harm from Supri that it did not find her to be a truthful witness and doubted the credibility of her claim, and that in any event even if her claimed fear is true that her dispute with Supri was a private personal matter without any state or official involvement that state/police protection would be available to her upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located and with help from the Indonesian government and NGOs to assist her if necessary in the care of her daughter while adapting to her new environment that her claim for non-refoulement protection failed on all applicable grounds.     

9.  On 23 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

(1)     Procedural unfairness in that the Board had unlawfully fettered its discretion in refusing her appeal on the grounds that they did not meet the requirement;

(2)     Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

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

(4)     Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)     That the Board significantly relied on the source of news that is not officially recognized or is simply hearsay or outdated which resulted in its making groundless speculations that it would be safe for the Applicant to return to her country of origin; and

(6)     Procedural unfairness in that she was given the appeal bundle only six days before her appeal hearing before the Board with the majority of the documents in English with which she had limited skill and without financial resources to seek help from interpreter thereby giving her insufficient time to prepare for the hearing.   

10.  The Applicant however failed to attend the hearing of her application to make representations as to how these proposed grounds would be reasonably arguable for her intended challenge, as they are mostly just some broad and vague assertions of hers 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 how did the Board unlawfully fetter its discretion in refusing her appeal, 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 that the Board had acted in a procedurally unfair or unreasonable manner.  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.

11.  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. 

12.  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 gave her insufficient time to prepare for her appeal. 

13.  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 covering letter that accompanied the hearing bundle to show the actual postmark, 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 from DLS for her claim before the Director, whilst her NCF was completed on her own instructions with legal assistance, and that during her oral hearing before the Board she never raised any issue or requested the Adjudicator 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, nor do I find this ground reasonably arguable for her intended challenge either. 

14.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 66 – 80 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.   

15.  The fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if true 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.                 

16.  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. 

17.  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