DIVI DIAH NINGRUM v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 817/2017

[2018] HKCFI 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 817 of 2017

 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 30-year-old national of Indonesia who arrived in Hong Kong on 11 November 2010 with permission to remain as a domestic helper under her employment contract until its expiration on 10 November 2012 or within two weeks of its early termination.  On 10 February 2011 her contract was terminated prematurely but she did not depart within the stipulated period and instead overstayed for which she was subsequently arrested by the police.  She was later charged and convicted of the offence of theft committed during her employment and was sentenced to six weeks’ imprisonment.  Upon discharge from prison she was referred to the Immigration Department for deportation but on 13 March 2014 she raised her non-refoulement claim on the ground that if she returned to Indonesia she would be harmed or killed by the loan sharks from whom her mother had borrowed money but failed to repay. 

2.  The applicant was born and raised in Banyuwangi, East Java, Indonesia.  Her parents were divorced when she was small and as her mother had to work in a factory, she was raised by her grandmother in Banyuwangi.  In 2006 the applicant dropped out of secondary school to marry her husband in a religious marriage not officially recognized in Indonesia, and gave birth to a daughter in 2008.  The family continued to reside with the applicant’s grandmother.

3.  On day in late 2008 several men came to her grandmother’s home looking for her mother claiming that she had borrowed money from them but failed to repay them, and threatened the applicant and her family with harm if her mother still failed to repay her loan.  The applicant was told by her grandmother that these man were loan sharks from whom her mother had earlier borrowed money for living expenses after she divorced her father.  

4.  For the next two years the loan sharks continued to harass the applicant and her family demanding repayment of her mother’s loan with threats of violence, and on several occasions in 2010 even hit the applicant by slapping her face and hitting her back with bamboo sticks, but the applicant never reported the assaults to the police as these men had threatened to kill her and her family if she dared go to the police.

5.  To avoid the loan sharks and in order to support her family the applicant came to Hong Kong on 11 November 2010 to work as a domestic helper, whilst her husband soon left their marriage with their daughter as he was unhappy about the applicant leaving Indonesia.  In February 2011 the applicant’s employment was terminated but she did not depart Hong Kong and subsequently raised her non-refoulement claim with the Immigration Department.  After she was released on 10 July 2013 on recognizance, she started a relationship with another man in Hong Kong with whom she gave birth to her second daughter on 19 August 2014 for whom she also made the same non-refoulement claim on 6 October 2014 with legal representation under the Duty Lawyer Service.

6.  By a Notice of Decision dated 30 April 2015 the claim of both the applicant and her daughter were rejected by the Director of Immigration (“the Director”) on then all 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 (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found the applicant’s dispute with the loan sharks a private financial matter without any involvement of the state or the police and hence state and police protection would be available to her and her daughter, that objective Country of Origin Information (“COI”) show that on-going reforms in Indonesia in police corruptions and efficiencies have provided positive results, and that internal relocation alternatives are available for the applicant and her daughter to return to Indonesia with such a large population of 253 million people spread over a territory of more than 1.9 million square kilometers in cities away from her home town such as Jakarta where she can live and work free from any threats from those loan sharks.

8.  On 11 May 2015 the applicant and on behalf of her daughter appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which she attended an oral hearing on 24 February 2016 during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 13 December 2016 the appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  The Board essentially made the same findings as the Director that the applicant’s case is all about a private dispute over repayment of a loan between private citizens of Indonesia with no act instigated or authorized by or with acquiescence of the state or government, that on her own case the applicant failed in her appeal under torture risk, BOR 3 risk and persecution risk, and that objective and reliable COI show that it would be safe for her and her daughter to return to any place in Indonesia other than her home town as it did not accept that after all these years the loan sharks would still be interested in locating the applicant all over Indonesia especially when she is not even the debtor.

10.  By a Notice of Further Decision dated 31 March 2017 the Director again rejected the applicant’s claim and of her daughter in the absence of any response from them to an earlier letter inviting them to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoluement protection, including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

11.  On 11 April 2017 the applicant and on behalf of her daughter again appealed to the Board against that second decision of the Director.  On 13 October 2017 the Board dismissed that appeal upon finding that the applicants failed to establish their case under BOR 2 risk.  

12.  On 27 October 2017 the applicant filed her Form 86 on her own for leave to apply for judicial review of both the decisions of the Director and the Board, and in her affirmation in support of her leave application for judicial review, she provided the following three grounds for her intended challenge:

(a) lack of legal representation in her appeal to the Board as well as her application before the Director on BOR 2 risk;

(b) lack of language assistance for translating her Non-refoulement Claim Form (“NCF”) for use in her appeal before the Board; and

(c) wrongful exercise of case management power in the Board’s determination of her credibility.  

13.  For the first ground of no legal representation in her appeal before the Board or her claim before the Director on BOR 2 risk, the Court of Appeal has held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar(2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right  to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.  

14.  The applicant already had the benefit of legal representation in presenting her case to the Director at least up to his first decision on all applicable grounds except BOR 2 risk, and also gave evidence in her appeal before the Board and was able to answer questions put to her by the adjudicator for the Board without any difficulty, and even now in her leave application for judicial review including an oral hearing in which she attended to present her case, she never stated or outlined what further information or argument which she wished to make but unable to do so either before the Board or the Director on BOR 2 risk.  I am of the view that on the facts of the case the assessment of her claim under BOR 2 risk could effectively be made on the same materials presented on her behalf with the assistance of lawyers as before, and I do not find anything amiss arising from the non-availability of legal representation in those process of her claim.

15.  Regarding ground (b) in which the applicant complains of not being given any translation of her NCF for her to find out if the interpreter had translated the basis of her claim properly, bearing in mind that she was then already having legal representation and that her NCF was completed with legal assistance as well as in all her subsequent screening interviews before the Director, and in the absence of any specifics from the applicant as to which, if any, part of the basis of her claim may have been incorrectly interpreted or translated, I find her complaint as merely speculative and without any merit. 

16.  As for the last ground in which the applicant complains that her second appeal to the Board against the Director’s decision to reject her claim under BOR 2 risk should have been heard by a different adjudicator after the first adjudicator had found her dishonest and not a genuine claimant and was therefore obviously biased against her in her second appeal to the Board, it is relevant to note that the adjudicator dismissed her second appeal on BOR 2 risk not on the basis of her credibility but rather on the lack of additional materials from the applicant in support of her claim, as he explained in his decision of 13 October 2017:

“ 8. As the Applicants have been given the opportunity by the Director to provide further materials and submissions (even though they have provided none), and now have had the opportunity to write to the TCAB. Their case is abundantly clear now as was before the TCAB previously. I cannot see the need or the justification to organize yet another oral hearing merely to re-canvass the same case as has already been dealt with and disposed of before. As the Court of Appeal has said, ‘The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently’ AW v Director of Immigration CACV 63/2015. In today’s case, the issue under BOR2 Risk can more than adequately be considered and dealt with on paper.

9. Having studied the case, including the Applicants’ NOA, for all the reasons stated in the TCAB’s Decision dated 13 December 2016, all of which are applicable in a decision on BOR2 Risk, I do not find the Applicant to have succeeded in establishing their case under BOR2 Risk even bearing in mind that the standard of proof in this type of proceedings is relatively low.”

17.  On the facts of her case before the Director and the Board, the adjudicator was entitled to reject the applicant’s claim under BOR 2 risk, and I do not see anything amiss for the same adjudicator to deal with her such claim, or any justification in the circumstances for another adjudicator to deal with the claim. 

18.  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 if law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.  For the reasons given, 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