SELAMET-HARIYANTI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1024/2017

[2018] HKCFI 1965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1024 of 2017

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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 23 December 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract as extended up to 16 April 2015 when she did not depart and instead overstayed until she was arrested by the police on 16 October 2016.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband.  She has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Kutuk, Unda’an Subdistrict, Kudus Regency, Central Java, Indonesia.  After leaving school she worked in various jobs and married her husband in 1995 and gave birth to a daughter, but as her husband turned out to be lazy and did not do much work during the marriage, the applicant went overseas in 1997 to work as a domestic helper in Saudi Arabia and Taiwan to support the family.

3.  After saving up sufficient money the applicant in 2005 returned to her home village in Indonesia to build a new house for the family and started her own garment business in Jakarta where she rented a house for she and her husband to stay while running her business.

4.  However, she lost her business in a fire in 2008 and the couple therefore moved back to her home village, and as it led to financial difficulty her husband started to abuse the applicant when he got drunk by slapping and punching her, and after he had borrowed money from his friends, he would force the applicant to have sex with his creditors as repayment of his debts.

5.  By mid-2009 the applicant found it no longer tolerable to live with her husband, she therefore moved to stay with her mother, and in 2010 she left Indonesia to work as a foreign domestic helper in Hong Kong.  In late 2012 when she returned to Indonesia to visit her family, she ran into some strangers who claimed to be her husband’s creditors and demanded that she repaid the loan for him, and when she refused and later confronted her husband about those men, a heated quarrel broke out between them during which her husband punched and kicked her and threatened to kill her.  After the incident the applicant did not report the matter to the police and shortly thereafter she returned to Hong Kong for her second contract.

6.  However, when her contract was terminated in 2015, and when she was unable to find another employer, she began a relationship with a Hong Kong resident which ended after she discovered that he was already married, and when her husband heard about their relationship, he threatened to kill the applicant when she returned to Indonesia.  As she became fearful for her life she therefore overstayed in Hong Kong and subsequently lodged her non-refoulement claim, for which she completed a Non-refoulement Claim Form on 27 March 2017 with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 22 May 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 and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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”).

8.  In his decision the Director found the low intensity and frequency of past ill-treatment from her husband indicative that future risk of the applicant being ill-treated upon her return to Indonesia is unlikely to materialize, that it was a private domestic dispute between them that state or police protection would be available to the applicant if resorted to, and that 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 work experiences to move safely to other areas away from her home district and well beyond the capability or resources of her husband to locate her such as Surabaya or Jakarta where she had lived without any incidents before departing for Hong Kong.  

9.  On 25 May 2017 the applicant filed an appeal against the Director’s decision to the Torture Claims Appeal Board (“the Board”), for which she attended an oral hearing on 20 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 29 September 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted on the facts of the applicant’s case that she has an on-going genuine and subjective fear that her husband would harm her upon her return to Indonesia, but as they have lived apart for so many years and that her only knowledge of his latest situations is a telephone call between him and their daughter, it considered there to be only a remote chance her husband is still motivated to harm her such that he would travel elsewhere in Indonesia to search for her, and that there is an even further remote chance that he would be able to locate her in such large cities as Jakarta or Bandung, and concluded that the applicant will not face any real risk of proscribed harm from her husband if she is refouled to Indonesia and relocates to Jakarta or Bandung.    

11.  On 7 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following ground for her intended challenge:

(1)  procedural impropriety for failing to conduct sufficient independent inquiry into and critical analysis of COI in the consideration of her claim;

(2)  procedural impropriety for failing to provide adequate reasons for preferring COI materials that support their decisions over those that do not support their conclusion;

(3)  procedural impropriety for cherry picking COI materials to support their conclusions;

(4)  error/misdirection in law for failing to apply proper principles in their assessment of effectiveness of state protection for its citizens;

(5)  error/misdirection in law for failing to consider the psychological impact of the facts raised in her claim including the injuries and abuses and other threats against her to repay her husband’s loan to his creditors; and

(6)  irrationality/illegality for taking into account of irrelevant considerations including the fact that she did not seek medical treatments for her injuries without considering her limited financial condition and for treating her claim as a private and personal dispute.  

12.  These are however mostly 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 Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.  A close examination of the relevant COI listed and referred to by the Director in paragraphs 21 – 25 of his decision clearly shows that the Director did carefully balance the information that may corroborate the applicant’s assertions with those which indicate that the Indonesian police could provide protection to the public and the government has taken practical steps to improve their effectiveness in his consideration of the applicant’s claim, and that there is no merit in any of the applicant’s complaints under grounds (1) to (4).

14.  The fact that both the Director and the Board did accept the applicant’s case of being abused by her husband and her fear of harm from him as genuine in my judgment renders her complaints under grounds (5) and (6) pointless, and as it has been established by both in their decisions that such risk of harm is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Indonesia, there is simply no justification for affording her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.  In the premises and having proceeded to consider 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.

16.  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