YULIANA-RAKHMAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2202/2018

[2021] HKCFI 2227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2202 of 2018

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 42-year-old national of Indonesia who last arrived in Hong Kong on 10 March 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 February 2014, but upon her subsequent application for change of employment for a different employer, she was found to have made false representation to the Immigration Department for which she was subsequently charged and convicted and was sentenced to prison for 4 months, and upon her discharge from prison and 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 former husband for divorcing him and for having a boyfriend in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Donomulyo, Malang City, East Java, Indonesia. After leaving school she married her former husband who worked as a driver in her home village, but after losing his job in 2000 he became an alcoholic and abusive to the Applicant and would turn violence towards her whenever he was drunk.

3.  To avoid her husband’s abuses the Applicant in 2001 went to Malang City to work during which her husband would come to her parents’ home to demand for her return and threatened to kill her if she failed to do so. Fearing for her life, the Applicant therefore departed Indonesia in 2004 for Hong Kong to work as a foreign domestic helper, returning to Indonesia in 2008 to demand to divorce her husband and when he refused, she then hired a lawyer and eventually obtained her divorce in 2012 when she later formed a relationship with a Irish man in Hong Kong.

4.  However, her former husband refused to accept their divorce and continued to make threats to the Applicant’s family against the Applicant, and when he later learned of her relationship with her boyfriend in Hong Kong, he threatened to kill her when she returned to Indonesia, and so in 2014 the Applicant was afraid to return to Indonesia and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 1 March 2017 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 found no substantial grounds for believing that the risk of harm form her former husband is likely to materialize upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that they are already divorced and there is no reason after all these years for her former husband to have any adverse interest in her, that it was a private domestic dispute 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 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 former husband to locate her.

7.  On 8 March 2017 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 June 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 20 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence of threats from her former husband vague and inconsistent, that with so many years after their divorce and with no further contact between them since 2001 that it is not accepted that her former husband would still have any adverse interest in her, and that in any event it was a private domestic dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as other organizations to assist her that her claim for non-refoulement protection failed on all applicable grounds.  

9.  On 11 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her written submissions dated 20 May 2021 she put forward the following grounds for her intended challenge:

(1)  that the Board was in breach of procedural fairness in that it had unlawfully fettered its decision by refusing her appeal on the ground that it did not satisfy the requirements;

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

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

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

(5)  that the majority documents in the bundle were in English that there was insufficient time for her to prepare for her appeal hearing due to her limited skills in English and being unrepresented that she was unable to find any interpreter to assist her with her appeal and that she was confused and did not know what happened during the hearing before the Board; and

(6)  that she answered all the questions honestly during the hearing that it was unfair that her credibility was found questionable by the Adjudicator due to her problems with the hearing bundle.  

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 did the Board or the Adjudicator err in the decision, or in what way did the Board unlawfully fetter its decision, or how did the Adjudicator act in an unfair manner or fail to meet the greater care towards her as an unrepresented claimant. 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.

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 particulars or elaboration was about the hearing bundle being provided to her late for her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents 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 NCF, records of her screening interviews 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 and assisted by an interpreter, the Applicant 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.  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 40 – 52 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.  

15.  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.     

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