MUNTIAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 579/2019

[2023] HKCFI 2678

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 579 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 oral submissions by the Applicant in open court;

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 9 December 2015 with permission to continue to work as a foreign domestic helper, but on 18 January 2018 she was arrested by the Immigration Department for making false representation to an immigration officer and for which she was subsequently convicted and sentenced to prison for 4 months, during which she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditors over her outstanding debts and/or by her cousin’s family who blamed her for causing her cousin to lose his leg in an accident. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Blifar, East Java, Indonesia. When she was small as a teenager, she caused an accident to happen to her cousin Angus who sustained injuries and subsequently lost his left leg, for which his family blamed the Applicant and that Angus’s father had repeatedly threatened to kill her who then tried to stay away from Angus’s family.

3.  After leaving school the Applicant worked as a domestic helper in her home district, got married and raised a family with 2 children.

4.  In 1992 in order to pay for her mother’s medical and hospital expenses, the Applicant borrowed loans from 2 local money-lenders to be repaid within 1 year and with monthly interest payments until discharge of the loans.

5.  However, the Applicant subsequently defaulted with her loans repayment, and after receiving death threats from her creditors, the Applicant went into hiding, and later in the same year she departed Indonesia for Hong Kong to work as a foreign domestic helper, but was later arrested on 18 January 2018 for making false representation to an immigration officer and was subsequently convicted and sentenced to prison for 4 months, during which she raised her non-refoulement claim with the Immigration Department, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 25 October 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”).

7.  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 creditors or her cousin’s family upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditors to seriously harm or kill her other than to press her for repayment of her loans, nor any evidence of any threats from her cousin’s family over the accident during all those years when they had had ample opportunity to harm her but did not do so before she left the country in 2012, that in any event these were private monetary or family disputes between 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 areas of the country away from her home district in large cities such as Bali or Surabaya where it would be difficult if not impossible for anyone to locate her.

8.  On 19 November 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 21 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her creditors or her cousin’s family that caused her to come to Hong Kong, and that in any event these were private disputes between them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 28 February 2019 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)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

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

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense and the result of procedural errors 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 it was procedurally unfair that the Applicant was not given any opportunity to put forward his submissions in an oral hearing nor was she invited to submit written submissions or evidence in support of her appeal;

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated and that the lack of credible source of information had resulted in the Board making groundless speculations that it would be safe for the Applicant to return to her home county.

11.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational, or what source of news or information were not officially recognized or were simply hearsay or outdated, while it is clearly factually incorrect to allege that she was never invited to put forward her submissions for her appeal when she clearly attended an oral hearing for her appeal during which she was able to put forth her representation and submissions with the assistance of an interpreter without any problem. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risks of harm in her claim if real are localized ones 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.

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 accordingly I 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