YUFIATUL RIZQI YUSUF AND ANOTHER v. HUGH SUTHERLAND MCCALL, ESQ., TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 215/2018

[2019] HKCFI 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 215 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 the Applicants being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The 1^st applicant (”A1”) is a 40-year-old national of Indonesia who last entered Hong Kong on 5 January 2009 with permission to remain until 9 January 2009 when she did not depart and instead overstayed in Hong Kong until 16 March 2011 when she surrendered to the Immigration Department while pregnant with her son the 2^nd applicant (“A2”), and subsequently lodged torture claims for herself, and for A2 after his birth, that if they were to return to Indonesia they would be harmed or even killed by her uncle MD, and upon their torture claims being rejected by both the Immigration Department and the Torture Claims Appeal Board (“the Board”), the applicants filed a non-refoulement claim on the same basis, and have been released on recognizance pending the determination of their claim.

2.  A1 was born in Desa Pabuaran, Purwokerto, Indonesia and was raised by her aunt NT and uncle MD after both her parents had died when she was small.  Whilst under their care she was being ill-treated and had been sexually abused by her uncle.  At the age of 15 she went off to work in Jakarta as a house maid, and from 1996 she worked as a foreign domestic helper in Singapore and Kuwait, and eventually in Hong Kong in 2007.

3.  In 2008 she acquainted a Gambian man MS in Hong Kong with whom she subsequently married in the same year according to the Islamic religion.  In early January 2009 when her then employment contract expired she briefly departed Hong Kong for Macau and returned on 5 January 2009 with permission to remain as a tourist until 9 January 2009, but when she failed to find new employment she did not depart and instead overstayed in Hong Kong living with her husband but from whom she later contracted the HIV virus and became HIV positive.

4.  Sometime in 2010 her uncle MD telephoned A1 and asked her to return to her home village in Indonesia with her husband to pay respect to him and his family, but when her husband refused to leave Hong Kong due to his health reason, A1 declined her uncle’s request and as a result her uncle became very angry and threatened to kill her as he thought it would bring shame to their family and their community if A1 were to return home without her husband, and later when he learnt of her pregnancy he threatened her again on the phone that he would also kill her son if she were to bring him home without her husband.

5.  In early 2011 when she continued to receive threatening calls from her uncle, A1 surrendered to the Immigration Department on 16 March 2011 and was subsequently charged and convicted for breaching her condition of stay and was sentenced to prison for six weeks.

6.  Upon release from prison A1 lodged a torture claim with the Immigration Department on the basis of the threats from her uncle, and after giving birth to A2 on 12 July 2011 she also lodged a torture claim on his behalf.  Their claims were rejected by the Immigration Department on 10 January 2013, and after their appeal was also dismissed by the Board on 20 May 2013, a removal order was issued against both applicants.

7.  In about the same time in May 2013 some friends from Indonesia brought A1 a cassette and a letter from her uncle MD containing his warnings to her not to return to home in Indonesia without her husband as otherwise it would bring shame to him, their family and the community.

8.  A1 never replied to that letter and instead threw the items away, but she understood that they were threats from her uncle that she and her son would be harmed or even killed if she dared to return home without her husband.  On 6 March 2014 she made a non-refoulement claim for protection for herself and her son, and registered her marriage with her husband in Hong Kong on 16 April 2014.  Upon subsequently obtaining legal representation from the Duty Lawyer Service (“DLS”), she completed a Supplementary Claim Form (“SCF”) on 7 November 2016 for herself and A2 and attended screening interview before the Immigration Department.     

9.  By a Notice of Decision dated 16 December 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the remaining applicable grounds including risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

10.  In his decision the Director took into account of all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing there would be any real risk of them being harmed or killed by MD on their return to Indonesia as their fear were based entirely on unsubstantiated verbal threats from MD who would be in his 80s and presented no real threats to them, that it was a private domestic dispute between them without any official involvement that state or police protection would be available to the applicants 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 253 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other part of Indonesia away from her home village such as Jakarta where it would be difficult if not impossible for her uncle to locate them.

11.  On 29 December 2016 the applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which they attended an oral hearing on 3 October 2017 before the Board during which A1 gave evidence for herself and on behalf of A2 and answered questions put to her by the adjudicator for the Board.  On 1 February 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

12.  In the Board’s decision whilst the adjudicator found some of A1’s evidence about the threats from her uncle inconsistent, confusing and exaggerated, he accepted that she had been ill-treated and abused by her uncle in the past and that he had been difficult by attempting to set conditions on her return to her home village, but the adjudicator was not persuaded that the anger or threats of her uncle are as significant as alleged, and found that the warnings about her return limited to ill-treating her and her son should they return to her home village but not to other parts of Indonesia, that based on the recent COI that Indonesia is committed to law and order and hence state or police protection will be available to the applicants, and as any threats from her uncle is clearly confined locally to her home village, A1 being an able-bodied adult with working experience can always relocate with her son to other part of Indonesia without fear of any risk of harm from her uncle.

13.  On 12 February 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in A1’s supporting affirmation of the same date made for herself and on behalf of A2 she put forward the following grounds for their intended challenge:

(1)  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 their claim;

(2)  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 their claim;

(3)  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;

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

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

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

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

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

14.  Although the applicants had requested for an oral hearing of their application, they failed to appear at the scheduled hearing without any explanation, and having satisfied myself that notice of the hearing had been given to them both by post to their last reported address and by telephone calls to A1’s stated phone number, and if somehow the notice did not reach them because they had changed their address without immediately informing the Court, the blame would lie squarely with them.  I therefore decided to proceed to deal with their application in their absence on paper without any further adjournment, and proceed to consider their grounds for their intended challenge. 

15.  They are however all just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their 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 relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and as it has been repeatedly emphasized by the Court of Appeal, unparticularised assertions expressed in general terms simply do not advance their case or arguments.

16.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their 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 A1 insufficient time to prepare for their appeal.

17.  Even if it is true that the hearing bundle indeed came to the applicants late as alleged, and A1 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 the SCF, records of the screening interviews and the Director’s decision should be well familiar to A1 as they had earlier all been made available to her when she still had legal representation, whilst the SCF was completed on her own instructions with legal assistance from DLS, 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 the appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

18.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of 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 being clearly and properly identified by the applicants, 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 Lokhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19.  Having heard A1 in her evidence and even on her own case the adjudicator was right to find on the evidence before the Board that it was a private family dispute between her and her uncle whose alleged verbal threats at the highest would still fall far short of putting the applicants’ claim within any of the applicable risks, and from which state and police protection would be available to both of them should those threats still persist from the uncle after all these years and notwithstanding his advancing age, and that based on reliable COI the adjudicator was also correct to find that the applicants would receive proper assistance and support in Indonesia for her HIV treatments and to mitigate any social stigma that they may receive in the event of their return to Indonesia without A1’s husband.  I am unable to discern any error in his decision.

20.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.  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 applicants’ claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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