SRIATIN-NGATIMIN alias NGATIMIN SRIATIN alias SRIATIN NGATIMIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 169/2019

[2022] HKCFI 3181

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 169 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;

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 10 July 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment expired on 10 July 2012, she did not depart and instead overstayed, and was arrested by police more than 5 years later on 30 October 2017. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Malang, Jawa Timur, Indonesia. After leaving school she worked as a domestic helper in Surabaya to make her own living.

3.  In 1992 she returned to her home district to visit her father who was seriously injured in a traffic accident, and in order to pay for his medical expenses, she borrowed a loan from a local money-lender, but after her father died from his injuries, and when she was unable to repay her loan and was threatened by the money-lender, she promised to return to work in Surabaya so as to earn money to repay the loan.

4.  Upon completing her job in Surabaya in 1993, she returned to her home district, but when she was still unable to repay her loan, she was beaten by the money-lender and his men with wooden sticks, and was warned that next time they would kill her if she still failed to repay her loan.

5.  As she became fearful for her life, the Applicant therefore went into hiding from the money-lender, and made arrangements to flee from the country for Hong Kong to work as a foreign domestic helper, which she did in 1997, but when her last employment contract expired in July 2012, she was afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her subsequent arrest by police more than 5 years later on 30 October 2017, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 19 April 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 13 June 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 found no substantial grounds for believing that her perceived fear from her creditor and followers will be real and foreseeable upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no real intention of her creditor to seriously harm or kill her other than to put pressure on her to repay her loan, that it is doubtful that there would still be any adverse interest in her after all these years since she left the country in 1997, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Indonesia, 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 of more than 1.8 million square kilometers 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 Jakarta where it would be difficult if not impossible for her creditor to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 8 October 2018 before the Board during which she gave evidence and answered questions raised on her claim by the Adjudicator for the Board. On 11 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her claimed fear of harm from her creditor over her outstanding debts that caused her to leave her country for Hong Kong that it doubted the credibility of her claim, but found in any event that it was a private monetary dispute between the two of 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 without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 17 January 2019 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 written submissions dated 12 August 2021 she put forth the following grounds for her intended challenge:

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

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

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

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

(6)  That the hearing bundle with the majority of documents in English was not provided to her with sufficient time to enable her to properly prepare for her appeal before the Board due to her limited skill in English and was not able to find a reasonably cheap interpreter to assist her to prepare for her appeal which was procedurally unfair to the Applicant.

11.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any 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 procedurally unfair or fail to take into account of relevant COI or which news of source were unofficially recognized or hearsay or outdated. 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.

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.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her late prior to 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 given her insufficient time to prepare for her appeal.

14.  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 date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interview 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, whilst her NCF was completed on her own instructions with legal assistance, and that at 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. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board, and I do not find this ground reasonably arguable for her intended challenge either.

15.  Furthermore, the fact is that it has been correctly 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, 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