SRI-WAHYUNINGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 71/2019

[2021] HKCFI 3421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 71 of 2019

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 46-year-old national of Indonesia who last arrived in Hong Kong on 1 December 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 1 December 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 August 2016, she did not depart and instead overstayed until 4 November 2016 when she was arrested by police.  After she was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over her extra-marital affair in Hong Kong and/or by his creditor over her outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jatisari, Karangrayung, Grobogan, Central Java Province, Indonesia.  After leaving school she moved to Semarang to work as a domestic helper and subsequently met and married her husband and raised a family with 4 children.

3.  During the marriage her husband indulged in drinking and gambling for which he would from time to time borrow money from the local loan sharks, and when he was drunk or had lost money in his gambling, he would abuse the Applicant by pushing and slapping and beating her at will.

4.  In 2009 her husband forced the Applicant to jointly borrow a loan from the local loan shark for his gambling habit, and in order to assist him with his loan repayment, she went to work as a domestic helper in Singapore in 2010 until 2012 when she returned to Indonesia, but when her husband’s abuses of her persisted and that his creditor also made threats against her whenever her husband failed to make his loan repayment, the Applicant therefore came to work in Hong Kong as a foreign domestic helper in 2015, during which she started an affair with another Indonesian man which was subsequently discovered by her husband who then threatened to kill her if she returned to Indonesia, and so when her last employment was terminated on 31 August 2016, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 21 March 2018 the Director of Immigration (“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 assessed the level of risk of harm from her husband or his creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with them were private monetary or domestic 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 alternatives are available in Indonesia with a large population of 258 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 Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or his creditor to locate her.

7.  On 3 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found significant inconsistencies and differences in the Applicant’s evidence as to her claim between those given earlier to the Director and at her appeal hearing to the Board which reflected poorly on her credibility and the reliability of her claim, that it was further undermined by her failure to raise her claim at the earliest opportunity until some 2 months later upon her arrest by the police and after a removal order had been made by the Immigration Department against her that she finally raised her claim, and concluded that there is no reliable evidence that the Applicant would face any risk of the proscribed form of harm upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.   

9.  On 9 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the decisions without putting forth any proper ground for her intended challenge until 26 October 2021 when she lodged a written submission with the following grounds for her intended challenge:

(1)  That the Board was in breach of procedural unfairness in that:

(a)   the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(b)   the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(c)   the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

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

(e)   that due to her lack of understanding of what happened at her appeal hearing as the hearing bundle was not provided to her earlier that she was confused in terms of what happened during the hearing.  

(2)  That the Board significantly relied on source of news not officially recognized or were simply hearsays or fairly outdated resulting in its groundless speculations that it would be safe for her to return to her home country.

10.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any details or particulars or elaboration as to how they applied to her case, or in what way was the Board in breach of procedural unfairness, or how did it unlawfully fetter its discretion in assessing her non-refoulement claim, or how was its decision unreasonable or irrational in the public law sense, while at the hearing of her appeal before the Board the Applicant was assisted by an interpreter and that she never raised any issue with the hearing bundle or ever complained of any confusion over the issues of her appeal.  As such and as none of her assertions were supported by any particulars or elaborations, nor was she able to do so as she failed to attend the hearing of her application without explanation, 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.  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 48 – 90 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.  

13.  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 if true 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.                

14.  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.

15.  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