SUPARTI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 223/2018

[2019] HKCFI 114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 223 of 2018

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 45-year-old national of Indonesia who last arrived in Hong Kong on 26 August 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 July 2009 or within two weeks thereafter when she did not depart and instead overstayed until 12 October 2012 when she was arrested by police for taking unapproved employment for which she was subsequently convicted and sentenced to three months’ imprisonment, and later upon being served with a removal order she lodged 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 husband and/or by her creditor for failing to repay her loan.  She has since been released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Village Druju, Sumber Manjing Wetan Sub-District, Malang regency, East Java Province, Indonesia.  After leaving school she worked as a domestic helper, married her husband in 1992 and gave birth to a daughter.

3.  In 1996 the applicant went to work as a domestic helper in Malaysia and then in Hong Kong in 2004 and made monthly remittance to her husband to support the family as her husband was then out of a job.  In 2006 she borrowed money from various sources including from a fellow villager to renovate her house in Indonesia and to whom she would make repayments by instalments, and as a result her monthly remittances to her husband were reduced which caused frequent conflicts between them.

4.  In 2007 when the applicant returned to Indonesia to visit her family, her husband demanded that the house be sold so that he could use his half share of the money to repay his creditors, but when the applicant refused he became furious and threatened to kill her by grabbing her in the shoulder, and when she tried to escape she fell and broke her wrist for which she had to receive treatment at a clinic.

5.  After the incident the applicant did not make any report to the local police as she was soon to return to work in Hong Kong when she thereafter did not have any further contact with her husband until 2009 when he called to complain that one of her creditors had come to their home looking for her and threatened to kill her for failing to repay her debt, and that as she had also failed to send him any money he also threatened to kill her if she returned to Indonesia.

6.  As a result upon the expiration of her last employment contract the applicant did not depart Hong Kong and instead overstayed until her arrest by the Immigration Department when she lodged her non-refoulement claim, for which she later completed a Non-refoulement Claim Form on 18 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 30 May 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from her husband and/or her creditor upon her return to Indonesia as low due to the absence of past ill-treatment from them and the lack of further contact from them since 2009, that her problems with them were private money dispute or domestic violence that in the absence of official involvement 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 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 areas away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or her creditor to locate her.

9.  By a Notice of Further Decision dated 11 July 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which she filed on 6 June 2016, and for which she attended an oral hearing on 8 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 9 February 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found the only death threat uttered by the applicant’s husband was based on one episode of domestic violence in 2007 when the applicant got injured while trying to escape from him, that there is no evidence to suggest that after all these years that such threats from her husband or her creditor still persist, that in any event state or police protection would be available to the applicant as well as internal relocation alternatives within Indonesia where it would not be unreasonable or unsafe for her with ample work experience to move safely elsewhere away from her home district.   

12.  On 13 February 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  procedural impropriety in the adjudicator’s failure to carry out sufficient independent inquiry in the relevant COI including failing to conduct a critical analysis of the relevant COI or to provide adequate reasons as to why certain information which supported its decision were preferred over the others, or to cheery-picking from the COI to support its conclusion, or failing to take into consideration that the government of Indonesia failed to protect its citizens from domestic violence due to the corruption of its police;

(2)  error/misdirection in law in failing to apply or properly apply the UN Committees General Comment No 2 concerning the obligation of the signatory state to protect its citizens;

(3)  error/misdirection in law in failing to consider the psychological impact of the abuses suffered by the applicant in her claim; and

(4)  error/misdirection in law in failing to assess the applicant’s fear under BOR 3 risk in assessing her credibility in the consideration of her claim.  

13.  These are however all very 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 how the adjudicator erred in assessing her claim under BOR 3 risk.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.  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, of which they were entitled to do based on the evidence available to them and in the absence of any legal error or procedural unfairness or irrationality being clearly or properly identified by the applicant in the decisions, there is simply no justification to afford 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