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

HCAL 1065/2018

[2019] HKCFI 2177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1065 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 41-year-old national of Indonesia who last arrived in Hong Kong on 27 January 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 11 January 2010 or within two weeks of its early termination.  On 13 May 2009 when her employment contract was prematurely terminated, she did not depart and instead overstayed and was arrested by police on 5 December 2010.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or by his creditor for failing to repay his loan.  After her torture claim was rejected by the Immigration Department, she then made a claim for non-refoulement protection on the same basis, and was released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Cilacap Regency, Central Java, Indonesia. After leaving school she married her husband who worked as a farmer in the village, and remained as a housewife after giving birth to a son.

3.  Throughout the marriage her husband would indulge in drinking and gambling,and to support such habits he would often resort to borrowing, and when drunk he would become abusive to the applicant by pushing and slapping her around.

4.  To help out with the family’s income, the applicant in 2006 started to work in Hong Kong as a foreign domestic helper and to remit part of her monthly salary to her husband in Indonesia for the support of their son.

5.  In about 2007 her husband telephoned her to demand for more money to help him to repay his loan to a local loan shark, and when she claimed to be unable to do so,he threatened that he would do something bad to her when she returned to Indonesia.  As a result she changed her phone number and ceased all contacts with him.

6.  Later she was told by her mother that her husband’s creditor had come to her home looking for the applicant and threatened that if she failed to help her husband to repay his loan he would kill her when she returned to Indonesia.  Hence after her last employment contract was terminated, she did not dare to return to Indonesia and instead raised her torture claim and later her non-refoulement claim for protection for fear of being harmed or killed by her husband or his creditor, for which she later completed a Supplementary Claim Form (“SCF”) on 7 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 21 December 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on the remaining applicable grounds other than torture risk but including risk of her 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”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there will be any risk of her being harmed or killed by her husband or his creditor upon her return to Indonesia due to the absence or low intensity and frequency of any past ill-treatment from them, that her problems with them were domestic or personal monetary disputes 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 255 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work 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 or his creditor to locate her.

9.  The applicant then 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 12 March 2018 before the Board during which she confirmed her evidence in the materials before the Board and answered questions put to her by the adjudicator for the Board.  On 11 May 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found even on the applicant’s own case that her claimed ill-treatment from her husband or his creditor failed to attain the minimum level of severity under any of the applicable risk, that it is doubtful after all these years that they would still have any adverse interest in her, and that in any event her problems with them were domestic or personal monetary disputes that state protection and reasonable internal relocation in Indonesia would be available to the applicant that it would not be unduly harsh for her to move to other places such as Jakarta where she had stayed before without incidents and where it would be difficult if not impossible for her husband or his creditor to locate her that her non-refoulement claim failed on all applicable grounds.

11.  On 11 June 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)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

  (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 decision to refuse her appeal was 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 by giving her the hearing bundle only six days before her appeal hearing with the majority of the documents in English thereby giving her insufficient time to prepare for the hearing especially due to her limited skill in English and being unrepresented; and

  (5)  procedural unfairness in that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which led to groundless speculation that it would be safe for her to return to her home country.

12.  These are however mainly just broad and vague assertions of the applicant containing several 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 how did the Board unlawfully fetter its discretion or act in an unfair manner in dealing with her appeal, or in what way was the Board’s decision unfair or unreasonable in the public law sense or that the COI were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and as such I do not find any of them reasonably arguable for her intended application.

13.  The only 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 SCF, record of her screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all been made available to her when she was still legally represented by DLS, whilst her SCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue with the hearing bundle 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 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