SUNARSIH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 306/2018

[2018] HKCFI 2299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 306 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 34-year-old national of Indonesia who last arrived in Hong Kong on 27 November 2008 with permission to remain as a foreign domestic helper until 27 November 2010 or within two weeks of the termination of her employment contract.  On 23 June 2009 her contact was prematurely terminated but she did not depart at the expiration of two weeks and instead overstayed until 6 December 2010 when she was arrested by police for overstaying and also for possession of another person’s identity, for which she was later convicted and sentenced to imprisonment for eight months.  In March 2011 she raised a torture claim but did not proceed with it when she subsequently failed to report for her recognizance, and after her arrest by the police on 27 March 2014 she lodged a non-refoulement claim with the Immigration Department on the basis that if she returned to Indonesia she would be ill-treated by her husband for failing to assist him with his loans repayment and for her having an extra-marital relationship with another man in Hong Kong, and/or by his creditors for failing to repay her husband’s loans on his behalf, and/or by her parents-in-law for failing to work to support the family during her marriage, and that she would be rejected by her son for her extra-marital relationship. She has since been released on recognizance pending the determination of her claim. 

2.  The applicant was born and raised in Nganjuk, Indonesia.  After leaving school she got married and moved to reside with her in-laws in Ponorogo.  In 1999 they moved to Surabaya where she found a job in a furniture factory while her husband worked in construction sites.  In 2003 when she became pregnant with her son she quit her job and moved back to Ponorongo to stay with her in-laws as a housewife while her husband continued to work in Surabaya.

3.  During her stay with them her in-laws always complained about the applicant not working, and during her husband’s visits he would always stay out with his friends and would come home drunk and would become abusive to her by slapping and punching her, of which she never reported to the police as they would treat them as domestic disputes and would not do anything to help, hence the applicant had had to put up with such abuses from her husband and in-laws until 2008 when she came to work in Hong Kong as a foreign domestic helper.

4.  In June 2008 the applicant was told by her husband that he had borrowed large sums of money from a loan shark and demanded her to remit money to him every month to assist him with his loans repayment, which she did until June 2009 when her employment was terminated and she was unable to make any further remittance to her husband, and since then she has not heard from him or her in-laws again, nor did she return to Indonesia and instead overstayed in Hong Kong when she entered into a relationship with a Somali man who was also a non-refoulement claimant, and subsequently raised her own claim for which she completed a Non-refoulement Claim Form (“NCF”) on 26 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 17 February 2016 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights (“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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm upon her return to Indonesia as low due to the absence or low intensity and frequency of past ill-treatment from her husband or in-laws all of which if true had ceased since 2008 when she came to Hong Kong and with no further contact since 2009 that it is doubtful that they would still have any adverse interest in her after all these years, that there is no evidence of any threats from her husband’s creditors who knew nothing at all about her, that whatever rejection from her son is purely speculative and in any event would not constitute ill-treatment under any applicable grounds, that in the absence of 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 255 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 work experience to move to other area away from her home district where it would be difficult if not impossible for any of her perceived enemies to locate her.   

7.  By a Notice of Further Decision dated 8 August 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation for her to submit additional facts which may relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 29 February 2016, and for which she attended an oral hearing on 18 September 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 22 February 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board made the same findings as the Director on the evidence and materials provided by the applicant and found that she has failed to establish that she has a well-founded fear of harm from her husband or in-laws or her son as clearly she has no intention of returning to them, whilst she never has any contact with her husband’s creditors and does not know anything about who they are, and that any such risks from any of them were confined to the local area where she had lived, and hence there are many options for her as an able-bodied adult with years of work experience to relocate to elsewhere in Indonesia.   

10.  On 27 February 2018 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 supporting affirmation of the same date as well as her further submission of 31 July 2018 she put forward various grounds for her intended challenge which can be summarized as follows:

(1)     that the decisions of the Director and the Board were not reasonable or fair as they had wrongly assessed her claim;

(2)     that the adjudicator failed to give her sufficient time and opportunity to arrange for relevant evidence in support of her claim and her appeal;

(3)     that the Director and the Board failed to apply high standards of fairness when she was not given any legal assistance for her claim under BOR 2 risk before the Director or in her appeal to the Board;

(4)     that she was not aware of the Director’s invitation for her to submit additional facts for her claim under BOR 2 risk and was therefore deprived of the opportunity to do so and hence the Director’s decision to reject her claim under BOR 2 risk was unfair or unreasonable;

(5)     that it was unfair or unreasonable that none of the documents in the hearing bundle provided to her for her appeal to the Board had been translated or interpreted to her by the interpreter in the appeal; and

(6)     that the adjudicator wrongly concluded from the COI that it would be safe for her to relocate to her home country as they do not show the level of safety in Indonesia.

11.  Some of these grounds such as (1), (2) or (6) are just vague and bare assertions without any particulars or specifics or elaboration by the applicant as to how or in what ways were the decisions of the Director or the Board unfair or unreasonable, or how were the COI wrong or inaccurate in assessing her relocation options in Indonesia, or how she was not given any time or opportunity to present her claim or supporting materials of which she never raised any issue or request for time at her oral hearing before the adjudicator.  I do not find any basis or merits in such complaints of the applicant.

12.  As for her complaint of not being provided legal representation in her claim under BOR 2 risk before the Director or her appeal before the Board, the Court of Appeal has already 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: 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.

13.  The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

14.  As for her complaint of not being provided with a translation of the documents in her hearing bundle for her appeal before the Board, she should be well familiar with most of those documents such as her NCF, record of her screening interview, and the Director’s decisions which had earlier already been made available to her when she still had legal representation, while her NCF was clearly completed on her instructions by her lawyer, and that at her oral hearing before the Board she never raised any issue of translation or made any request to the adjudicator for the same, whilst she also had the assistance of an interpreter at her appeal hearing.  As such I do not find any basis or merit in this complaint of the applicant.

15.  Regarding her complaint of never had the opportunity of presenting her claim under BOR 2 risk before the Director, as noted from the Director’s Further Decision above that it was on 12 June 2017 when a letter was sent to the applicant at her then known address inviting her to submit additional facts relevant to her claim under BOR 2 risk, and if indeed that letter never reached her at that address, and it was her responsibility to update the authorities on her address and there was no evidence from her that that was the case, and in the absence of any response from her the Director proceeded to assess her claim under BOR 2 risk and found that she has failed to establish any personal or real risk of her absolute and non-derogable rights including right to life under the HKBOR being violated upon her return to Indonesia, and given the nature of the asserted ill-treatments the Director was perfectly entitled to arrive at such a decision based on the evidence and materials available to him.

16.  Furthermore, if indeed the applicant had wanted to submit additional facts or make further presentation for her claim under BOR 2 risk, she could have done so in her appeal before the Board which was a rehearing of her claim, or at her oral hearing before the adjudicator, and that in any event the Board did consider and similarly found no suggestion that her right under BOR 2 would be violated either from her or from the materials before it.  As such I do not find any merit in this complaint of the applicant either.

17.  The fact is that it has been established by both the Director and the Board in their decisions 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 [2013] 1 HKC 526.

18.  In the premises and having proceeded to consider 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.

19.  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