NUR KHASANAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2115/2018

[2020] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2115 of 2018

     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 38-year-old national of Indonesia who last arrived in Hong Kong on 9 August 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 August 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 14 November 2015, she did not depart and instead overstayed until 14 December 2015 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to send him money for his use.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tulung Agung, East Java Province, Indonesia.  After leaving school, she married her husband and moved to live with him in Mbangsal, Kediri Jatim where she gave birth to a son.

3.  As her husband was lazy and indulged in drinking and gambling and was frequently in debts, and to help out with the family’s finance, the Applicant in 2006 went to work as a domestic helper in Singapore, remitting most of her monthly salary to her husband for supporting their family.

4.  In 2008 she returned from Singapore to Indonesia, during which whenever her husband got drunk he would abuse her by slapping and hitting her, and so to avoid further abuses the Applicant applied to come to work in Hong Kong as a foreign domestic helper, and as before she would remit part of her monthly salary to her husband for the support of the family.

5.  However, in the summer of 2014 she was told by her son that her husband had been beating him at home, and as she found her husband’s behavior no longer tolerable, she demanded to divorce him, but when he refused, she stopped remitting money to him, and for which he would make numerous phone calls to her threatening to kill her if she failed to send him any more money.  As a result the Applicant changed her phone number in late 2015 and had since no further contact with him, but when her last employment was terminated in November 2015, she did not depart for Indonesia for fear of being harmed by her husband, and therefore overstayed in Hong Kong and raised subsequently her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 18 January 2018 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 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”).

7.  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 there will be any real risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention on the part of her husband to harm or kill her other than mere verbal pressure to get money from her, that in any event it was a domestic 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 260 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 husband to locate her.

8.  On 30 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the 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 26 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s case that there might have been monetary and domestic disputes between her and her husband which led to various threats made against her by her husband, but in the absence of any official involvement that state or police protection would be available to her as well as reasonable internal relocation within Indonesia for her to move safely to other area away from her home district without any risk of being located by her husband that her claim for non-refoulement protection in Hong Kong failed on all applicable grounds.      

10.  On 4 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1) misdirection in law in that the adjudicator wrongly took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) 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 her claim;

(3) 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 her claim;

(4) 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;

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

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

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

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

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

11.  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 the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of 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 her case, or what relevancy was state acquiescence to her claim, or in what way was her legal representation from her assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such 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 of them reasonably arguable for her intended challenge.

12.  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.

13.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her 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 her insufficient time to prepare for her appeal.

14.  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 decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she 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.

15.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm from her husband 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 & 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