SRI INDARSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2150/2018

[2020] HKCFI 2031

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2150 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of Indonesia who arrived in Hong Kong on 23 August 2006 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 last contract was prematurely terminated on 8 September 2009, she did not depart and instead overstayed and was arrested by police on 23 October 2009.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their monetary dispute, and when her torture claim was rejected, she then raised a claim for non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Desa Purwodadi, Kecamatan Ringin Rejo, Kabupaten Kediri, East Java, Indonesia.  After leaving school she married her husband, but as he was frequently unemployed, she therefore went to work in Singapore in 1999 as a domestic helper by remitting money to her husband for his use, but in 2002 she became homesick and decided to return to Indonesia much to her husband’s displeasure as he insisted that she should have continued to work to provide money for his use, and during their subsequent quarrel he beat her by punching and kicking her all over her body.

3.  Two days later the Applicant decided to leave their marriage by moving to Jakarta where she worked as a domestic helper, and had since 2002 no further contact with her husband.  In 2004 she then moved to Batam to work as a restaurant waitress before coming to Hong Kong in 2006 to work as a foreign domestic helper, but when her last employment contract was prematurely terminated, she did not return to Indonesia for fear of harm from her husband, and therefore overstayed in Hong Kong, and upon her arrest by the police she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 21 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  While released on recognizance pending determination of her claim, the Applicant was arrested by police again in 2010 for the offence of deception and undertaking unauthorized employment for which she was subsequently convicted on 21 October 2010 and was sentenced to prison for 16 months.  

5.  By a Notice of Decision dated 27 March 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there had been no further contact between them since 2002 that it is not accepted that he would still have any adverse interest in her after all these years, that in any event it was a domestic dispute 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 of more than 1.9 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 Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

7.  On 6 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 13 August 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 18 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s claim of having been threatened and abused by her husband over their monetary dispute, but found no further contact with him after all these years since 2002 that it is not accepted that she would still be at risk of any harm from him, and that in any event in the absence of any official involvement that state or police protection would be available to her as well as reasonable internal relocation within Indonesia for her to move safely to other area away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.   

9.  On 8 October 2018 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) misdirection in law in that the adjudicator wrongly took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected herself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

10.  These are however all 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 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 would state acquiescence be relevant to her case, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such 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 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.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before 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.

13.  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 SCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her SCF was completed on her own instructions with legal assistance, and that at her appeal hearing 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. 

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 from her husband 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.  

15.  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.

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