SUMIATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 642/2018

[2020] HKCFI 2033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 642 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 42-year-old national of Indonesia who last arrived in Hong Kong on 2 July 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when it was prematurely terminated on 25 October 2012, she did not depart and instead overstayed and was arrested by police on 29 July 2013.  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 for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Kupuk, Sub-district Bungkal, District Ponorogo, East Java, Indonesia.  After leaving school she went to work as a domestic helper in Singapore and then Taiwan before returning to Indonesia in 2003 when she decided to start her own business in breeding chicken, for which she borrowed a loan from a local money-lender in her home district, with monthly interest payable until full repayment of the principal loan.

3.  However, when her business eventually failed in early 2004 when she was unable to make her loan repayment, and in April 2004 her creditor started to make threats against her, and for which she then proposed to go work in Hong Kong as a foreign domestic helper so that she could resume her monthly interest payments, and so in October 2004 she came to Hong Kong to start her job and made her monthly remittance to her creditor, but when her last contract was terminated in October 2012, and when she was unable to find another employment to repay her creditor who then threatened to kill her if she returned to Indonesia, she therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.       

4.  By a Notice of Decision dated 29 November 2016 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”).

5.  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 and substantial risk of her being harmed or killed by her creditor upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention on the part of her creditor to harm her, 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 Indonesia away from her home district in large cities such as Surabaya where it would be difficult if not impossible for her creditor to locate her.

6.  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 9 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s evidence of being in debt to a money-lender in Indonesia which led to her claim for non-refoulement protection in Hong Kong vague and incredible that it was not accepted that there will be any real risk of harm to her upon her return to Indonesia, and that in any event with the availability of state/police protection and reasonable internal relocation within Indonesia further lowering or negating any such risk that it is not accepted that the Applicant faces any genuine and substantial risk of being harmed if returned to Indonesia that her claim for non-refoulement protection in Hong Kong failed on all applicable grounds.  

8.  On 16 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her written submission dated 11 May 2020 she put forward the following grounds for her intended challenge:

(1) procedural unfairness in that the Board had unlawfully fettered its discretion by refusing her appeal on the ground that they did not satisfy the requirement;

(2) 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;

(3) that the majority of the documents in the hearing bundle were in English thereby giving her insufficient time to prepare for her appeal due to her limited skill in English and without legal representation that she was unable to find or afford a proper interpreter to assist her in the process of her appeal to the Board; and

(4) that the Board had significantly relied on the source of news not officially recognized or was simply hearsay or outdated in its consideration of her claim resulting in groundless speculations that it would be safe for her to return to her country of origin.  

9.  These are however mostly 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 Director or the Board had erred in their decisions, or in what way did the Board unlawfully fetter its discretion or that its decision was unreasonable or irrational in the public law sense, or how it fail to take into account of relevant COI or that which were not official recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for her intended challenge.

10.  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.

11.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her without translation and late for 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.

12.  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 decision 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.

13.  Essentially the Board rejected her claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 8 – 30 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, 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.     

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