NURUL SUPADI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1955/2019

[2024] HKCFI 2501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1955 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Ms Nurul Supadi (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 18 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 31 January 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is an Indonesian.  She was born on 5 February 1976 in Central Java Province, Indonesia. 

3.  She received 9 years of education and had been working as a domestic helper since she left school.  She worked in Indonesia, Singapore, Malaysia and Hong Kong.

The Claim

4.  The Applicant married her husband (“S”) in March 1992 by a marriage arranged by her parents.  She gave birth to their sons in 1993 and 1994.  In around 1995, S promised to build a house for their family. 

5.  In around 2002, S complained about lack of money for building the house and asked the Applicant to go to work.  After giving birth to their daughter in July 2003, she agreed to take up overseas employment to help with the family’s finance.

6.  She worked in Singapore and Malaysia from 2004 to 2006.  She completed her contract in Malaysia towards the end of 2006 and came back to Indonesia.  She questioned S why their house was not yet completed and they had fights almost every day.  In around early 2007, S slapped her face after an argument.  On another day, S threw a hoe at her after an argument and she suffered a swollen arm and bruises.  She stayed with her parents for a while before returning home two weeks later.

7.  The Applicant came to work in Hong Kong in around 2007 and went back to Indonesia in around 2011.  She went to live with her parents after arguing with S over money matters.

8.  In around early 2012, S went to the home of the Applicant’s parents and had another argument with the Applicant.  S accused her of keeping some of the money she made in Hong Kong for herself.  He beat her with fist and stepped on her right foot and right arm.  She reluctantly gave IDR 22 million to S after the beating, which was what she had saved from her Hong Kong salaries.

9.  The Applicant suffered from bruises and swelling all over her body.  S brought her to a local government clinic and she received painkillers.  It took her about a week to recover.

10.  She returned to Hong Kong for work in the same year but continued to have arguments with S over phone on money matters.  In around early 2014, S verbally divorced her according to Islamic law due to her lack of trust on him and money matters.

11.  Towards the end of 2015, The Applicant went back to Indonesia for about 20 days to see her daughter.  She stayed with S but continued to have arguments with S.  S locked her in a room and beat her.  S also verbally threatened to kill her if she did not give him more money.  She suffered from bruises and swelling on her right shoulder from the attack.  She fled to the home of her elder sister after the incident.  Nothing eventful happened during her stay with her sister.

12.  The Applicant returned to Hong Kong in January 2016 to start a new employment.  She did not go back to Indonesia after her employment contract was terminated in July 2016 because she feared S would harm her.  She claimed that if she were to be returned to Indonesia, she would be seriously harmed or even killed by S because she did not send enough money to S.

Procedural history

13.  The Applicant last entered Hong Kong to work as a foreign domestic helper on 9 January 2016.  She was permitted to remain in Hong Kong for employment as a domestic helper until 27 October 2017 or 2 weeks after termination of employment.  Her contract was terminated prematurely on 9 July 2016.  She did not leave within the prescribed 14 days and overstayed in Hong Kong until surrendered to the Immigration Department on 26 August 2016. By a written submission of 7 April 2017, the Applicant lodged the Claim. 

14.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

15.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

16.  On 11 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant named both the Board and the Director as proposed respondents in the Form 86.

17.  The Applicant filed her supporting affirmation on 11 July 2019 (the “Supporting Affirmation”).

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there was no substantial ground for believing that there would be any real and substantial risk of the Applicant being harmed or killed by S upon her returning to Indonesia.

19.  The Director did not accept that the ill-treatments, whether physical or mental, inflicted upon the Applicant by S had attained a minimum level of severity.  Further, despite the alleged history of violence by S over the years, the Applicant willingly returned home several times.  She also did not report S to the police.  This showed that she did not perceive any imminent threats from S.

20.  The Director did not accept that S had any real intention to seriously harm or kill the Applicant because of the following factors.  First, after one attack, S took the Applicant to a clinic. Second, the Applicant had never seen S after 2015 and since then, they only maintained contact by phone once a week regarding their daughter.  Nothing eventful happened to her between 2015 and the time she sought non-refoulement protection. 

21.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some problems with corruption within the Indonesian authorities and they did not respond adequately to complaints of domestic violence. However, there were objective indications in the COI that the Indonesian authorities took steps to improve the police force.  Further, there were other avenues for the Applicant to seek protection in Indonesia, such as the integrated service centres for women and children operated by the government.

22.  The Director further found that internal relocation would be viable.  The Director noted that S did not harass her when the Applicant moved to live with her elder sister, even though her elder sister’s house was just next to the Applicant’s house.  If she moved to Bali, Jakarta or Surabaya, S would have great difficulty in locating her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life. 

23.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

24.  The Applicant failed to attend the hearing before the Board scheduled for 28 February 2019 (“Board Hearing”). The case officer of the Board’s office was unable to contact the Applicant through the telephone number provided by the Applicant.

25.  Pursuant to section 15 of Schedule 1A of the Ordinance, the Board gave notice to the Applicant requiring her to explain for her absence at the Board Hearing.  By a letter dated 4 March 2019 (“Letter”), the Applicant explained that she could not attend the Board Hearing because she was sick.  She stated that she did not seek medical treatment but bought medicine from the pharmacy.  She asked for another hearing for her case be fixed.

26.  The Board did not accept the Applicant’s aforesaid explanation as an adequate explanation and decided to determine the Appeal on available information.   

27.  The Board after considering the Applicant’s claims including her written representation, her claim form, the record of her interview with the immigration officer and her notice of appeal found her case “vague and generalized”.  It noted that she did not give concrete dates for the critical events and there was a lack of details on important aspects of her case.  The Board found that her evidence appeared concocted or invented and exaggerated and it inherently lacked credibility.

28.  The Applicant did not attend the Board Hearing.  The Board could not elicit details regarding the important events.  It was therefore not satisfied that the Applicant had shown, even on the basis of a very low standard, that she faced a real risk of ill-treatment or serious harm upon her return.

29.  The Board noted that even if the Applicant could show a real risk of ill-treatment to her upon her return, she could mitigate this risk by relocating to Jakarta or Bali.  With her work experience, it would not be difficult for her to obtain employment in those cities to support herself.

30.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.  

Legal principles applicable to judicial review

31.  In a judicial review, the court does not step into the shoes of the decision makers.

32.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

33.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

34.  The Applicant did not advance any grounds for her intended judicial review in the Form 86 or the Supporting Affirmation.  She only stated in the Supporting Affirmation that she would like to reject and set aside the decision made by the Immigration Department.  She stated that they disregarded the danger and threats which she faced in her country should she be deported there.  The Applicant produced the covering letter to the Board’s Decision and the Letter as exhibits to the Supporting Affirmation without other supporting documents.

35.  In her submissions dated 13 August 2024 (“Submissions”) sent to the court, the Applicant submitted that:

“I dont [sic] want go back Indonesia, because my life very danger, because my ex-husband will kill me, because he still demanding money from me for my childs [sic] education but I dont [sic] have money to give, I’m not allowed to meet my childs [sic]. I’m not give any money that why he angry to me. Please save my life. Please give me live in Hong Kong, because only in Hong Kong I feel savety [sic].”

36.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation and/or the Submissions.  The Applicant attended the hearing before me on 29 August 2024 (“Court Hearing”) and confirmed that she had nothing further to say for this application.

37.  Section 15(1) of Schedule 1A of the Ordinance provides that if a claimant does not attend a hearing, the Board may hear the appeal in the absence of the claimant.  By the Letter, the Applicant explained for her absence at the Board Hearing and requested the Board to fix another hearing date for the Appeal.  The Applicant provided no supporting evidence.

38.  Section 15(4)(b) of Schedule 1A of the Ordinance further provides that the Board must proceed to determine the Appeal if the Board is not satisfied, on the basis of the written explanation and supporting evidence submitted with the request for fixing another hearing date, that the claimant had exercised all due diligence to attend the hearing; but was absent from the hearing because of circumstances beyond the claimant’s control.

39.  The Applicant alleged in the Letter that she could not attend the Board Hearing because she was sick but she did not produce any supporting documents.  She was only making bare assertions.  After considering the Letter, the Board did not accept that the Applicant had provided an adequate explanation for her absence at the Board Hearing.  Pursuant to section 15(4)(b) of Schedule 1A of the Ordinance, the Board “must” proceed to determine the Appeal. 

40.  The Applicant had received the Board’s Decision latest on 11 July 2019 when she filed the Supporting Affirmation exhibiting a copy of the covering letter to the Board’s Decision.  She had more than 5 years before the Court Hearing to consider the Board’s Decision including the reasons for the decision stated therein.  She has had ample time to prepare and produce information or documents, if any, to reply to the adverse findings made by the Board in the Board’s Decision.  Yet, she produced nothing at the Court Hearing.

41.  At the Court Hearing, I specifically asked the Applicant whether she had anything to say in respect of various aspects of the Board’s Decision and whether she had any further information relating to the Claim to provide to the court.  The Applicant answered in the negative. In such circumstances, I do not see that there was any procedural unfairness for the Board to proceed with this case in accordance with the statutory provisions.  

42.  The Applicant did not provide any particulars or specifics in the Form 86, the Supporting Affirmation or the Submissions or at the Court Hearing as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

43.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation (including the Letter exhibited thereto) with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness. 

44.  The Board found that the Applicant’s evidence as revealed in her claim form and the record of interview was vague and generalized.  The vagueness of the Applicant’s evidence, and its lack of detail in relation to material events, raised issues which seriously undermine the general credibility of the Applicant.  The Board found that the core of the Applicant’s evidence appeared concocted, or invented and exaggerated, to the extent that it inherently lacked credibility.  In view of the Applicant’s failure to attend the Board Hearing, the Board was not persuaded that the Applicant was giving a truthful account of events.  The Board was also not persuaded that the Applicant was, in the past, subjected to violence at the hands of S, for the reasons stated by the Applicant, or at all.

45.  The Board was also not persuaded that there was a real risk, or a real chance, that if the Applicant was refouled to Indonesia, she would be deprived of her life in contravention of BOR 2 or subjected to torture or ill-treatment of any sort at the hands of S, or any other person, because of the Applicant’s failure to remit money to S. The Board was of the further view that the Applicant could, without undue inconvenience, avoid any risk of harm at the hands of S by relocating to Jakarta or Bali where the Applicant could, with her experience as an overseas domestic helper, easily obtain employment in the hospitality industry.

46.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Board’s Decision is without fault.  The proposed judicial review is not reasonably arguable.  

Conclusion

47.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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