ASTUTIK SUTADJI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 623/2018

[2020] HKCFI 2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 623 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 4 February 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 September 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 25 February 2015, she did not depart and instead overstayed until arrested by police on 14 September 2015.  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 abusive husband and/or his creditor for failing to help him to repay his loans.  She was subsequently being released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Dukuh Genengan, Koc Bandung, Tulungagung City, East Java, Indonesia.  After leaving school she worked in a grocery store, married her husband and raised a family of three children.

3.  Her husband was a casual construction worker with irregular income, and in 2004 he became addicted to illegal drugs and spent most of his income on buying drugs, and when he needed money to feed his addiction, he would either borrow from the local loan shark or demand money from the Applicant, and when she refused, he would yell at her and beat her at home.

4.  In early 2008 the local loan shark started to come to their home looking for her husband for repayment of his loans, and when he could not find her husband, he would demand that she repaid the money for him or else he would kill his entire family.

5.  To avoid further abuse from her husband and threats from the loan shark, the Applicant therefore placed her children in the care of her mother and came to work in Hong Kong in 2009 as a foreign domestic helper, returning to Indonesia only for vacations during which she would stay in her mother’s home to avoid her husband and the loan shark without any further incidents.

6.  However, when her last employment contract was terminated on 25 February 2015, she did not return to Indonesia as she was afraid of being harmed by her husband or the loan shark, and so she overstayed, and upon her arrest by the police, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 25 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 28 August 2017 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 and 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”).

8.  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 her perceived fear will be real and foreseeable upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from her husband or the loan shark, that it was doubtful after all these years that they would still have any adverse interest in her, that her disputes with them were domestic abuse or monetary matter 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 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 area away from her home district in large cities such as Jakarta or Surabaya where it would be difficult if not impossible for her husband or the loan shark to locate her.   

9.  On 6 September 2017 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 14 March 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 10 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found many aspects of the Applicant’s evidence given in her appeal hearing vague, inconsistent and contradicted her earlier statements given to the Director that cast serious doubts on the overall credibility of her claim, that she was not considered as a witness of truth, and that it was not accepted that she has any real fear of harm from her husband or the loan shark upon her return to Indonesia that she claim for non-refoulement protection in Hong Kong failed on all applicable grounds.   

11.  On 12 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 while no ground for seeking relief was given either in her Form or her supporting affirmation of the same date, she subsequently on 13 January 2020 put forward the grounds in her written submissions for her intended challenge:

   (1)  that she was not provided with legal representation for her BOR 2 risk which was therefore unfair and detrimental to her case; and

   (2)  that she was also not provided with sufficient language assistance given her vulnerability in language proficiency which was also detrimental to her case.   

12.  For her complaint in Ground (1) of not being provided legal representation for her appeal before the Board, while it is true that by then the Applicant was no longer represented by DLS, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

13.  The Applicant already had the benefit of legal representation in presenting her case to the Director which clearly also included her BOR 2 risk, and that she was able to testify and make representation, again including BOR 2 risk, during her appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty.  Furthermore, based on the existing materials and the case advanced by her, and in the absence of any additional relevant facts from her, there was simply no basis to engage BOR 2 risk in her claim.  As such and in the premises, I do not find anything amiss arising from the lack of legal representation in her appeal process before the Board, and I do not find this ground reasonably arguable.

14.  As for her complaint under Ground (2) of not being provided with language assistance, it is clear that in both her process before the Director, when she was also legally represented, and before the Board, the Applicant was assisted by an interpreter during which as noted above she was able to make proper representation of her claim without any complaint or issue over interpretation or language assistance.  In the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

16.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 61 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing, 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.

17.  The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  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.

19.  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