ABDUL KARIM HENI SRI UTAMI v. TORTURE CLAIMS APPEAL BOARD

HCAL 171/2019

[2023] HKCFI 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 171 of 2019

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 43-year-old national of Indonesia who last arrived in Hong Kong on 21 December 2012 with permission to continue 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 employment contract was terminated on 1 March 2015, she did not depart and instead overstayed, and was arrested by police some 10 months later on 9 January 2016. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jember, Jatim, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.  In 2000 she started to work as a foreign domestic helper in Hong Kong, but in 2007 her husband was suffering from cancer, and in order to meet his medical expenses, the Applicant asked her mother to borrow a loan from a local money-lender for which she acted as a guarantor by remitting part of her salary to her mother in Indonesia every month for the loan repayment by installments.

4.  However, when her husband later died from his cancer, the Applicant stopped remitting any money to her mother for the loan repayments, for which the creditor had sent men to make threats against her family in Indonesia, and so when her last employment contract was terminated in March 2015, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 19 December 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 30 January 2018 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 she would be harmed or killed by her creditor upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of the creditor to seriously harm or kill her other than to press her and her family to repay the loan and when her mother being the stated borrower of the loan has still residing in Indonesia without any risk or harm from the creditor all these years, that in any event it was a private monetary 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 258 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

7.  On 12 February 2018 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 20 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 4 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and contradictions in the Applicant’s evidence that undermined the reliability of her claim of fear of harm from her creditor that caused her to seek non-refoulement protection in Hong Kong, but found in any event even if such risk is real that it arose from a private monetary dispute without any official involvement that state/police would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely away from her home district to other part of the country away without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 17 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and while no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, she did subsequently in her written submissions dated 21 September 2021 put forward the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Board unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirements;

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

(3)  Procedural unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

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

(5)  Procedural unfairness in that the hearing bundle for her appeal was not provided to her earlier or with any interpretation as the majority of the documents were in English which she was not familiar due to her limited skills in English and being unrepresented thereby given her insufficient time to prepare for her appeal hearing before the Board;

(6)  That the Board had significantly relied on the source of news not officially recognized or were simply hearsays or outdated which resulted in making groundless speculations that it would be safe for her to return to her home country.

10.  These are however just all vague and bare assertions of the Applicant containing a few key words or phrases but without the necessary or relevant details or particulars or elaborations as to how they apply to her case, or how did the Board err in its decision or in what way did the Board unlawfully fetter its discretion or how did the Adjudicator act in a procedurally unfair manner, or what COI relied on by the Board were unofficially recognized or were hearsays or outdated. None of these assertions were supported by any particulars or specifics or elaboration from the Applicant that I do not find any of them reasonably arguable for her intended challenge.

11.  As for her only complaint with any details or elaboration of not given sufficient time to prepare for her appeal to the Board as the majority of the documents in her hearing bundle for her appeal were in English which she was not familiar with and as she was unrepresented that she was confused as to what happened at the hearing of her appeal before the Board, even if it is true that the hearing bundle were indeed provided to her late as suggested, and the Applicant never provided any supporting documentary evidence such as the accompanying letter or envelop that contained the bundle served on her, I note that most of the documents including her NCF, record of her screening interviews before the Director and the Director’s decision should be familiar to her as they were already available to her in her process before the director when she was legally represented by DLS, while her NCF was prepared on her own instructions by her lawyer, and at her hearing before the Board she never raised any such issue over the hearing bundle or requested to have more time to prepare for her appeal. As such I do not find anything amiss arising from the provision of the hearing bundle to the Applicant in her appeal before the Board or that there is any merit in this complaint of hers.

12.  In the circumstances, and in the absence of any error of law or irrationality 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 for the Applicant’s intended challenge.

13.  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.

14.  In the Applicant’s case, the fact is that it has been correctly stablished by both the Director and the Board in their respective decision that the risk of harm in her 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