TRI ASTUTI v. DIRECTOR OF IMMIGRATION

HCAL 1282/2024

[2024] HKCFI 3090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1282 OF 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the 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 for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 10 July 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.  The Applicant is a 50-year-old national of Indonesia who last arrived in Hong Kong on 17 January 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 6 August 2013 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 February 2013, she did not depart and instead overstayed, and was arrested by police on 19 March 2013, and when 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 creditors over their monetary disputes.

Previous Non-Refoulement Claim          

3.  By a Notice of Decision dated 2 September 2016 and a Notice of Further Decision dated 1 August 2017 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”).

4.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband and/or his creditors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of them to seriously harm or kill her other than to press her for money, that in any event these were private monetary disputes between them only 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 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 areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or creditors to locate her.

5.  The Applicant’s appeal against the Director’s decisions was dismissed by the Board on 1 December 2017 after hearing her in evidence and submissions and upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decisions.

6.  The Applicant’s late application for leave to apply for judicial review of the Board’s decision was then refused by Deputy High Court Judge Josiah Lam on 30 April 2019 upon finding no good reason for her serious delay, that none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 597/2018 [2019] HKCFI 978).

7.  The Applicant’s subsequent appeal against the Court’s decision was then dismissed by the Court of Appeal on 31 May 2021 (CAMP 226/2019 [2021] HKCA 744).

8.  The Applicant’s Notice of Motion for leave to appeal against the Court of Appeal’s decisions was also dismissed by the Court of Appeal on 9 September 2022 ([2022] HKCA 1285), and then by the Appeal Committee of the Court of Final Appeal on 16 February 2024 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

Request To Make Subsequent Claim

9.  Less than 3 weeks later on 5 March 2024 the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she still fears of being harmed or killed by her husband and creditors who are still looking for her, while in 2016 she had had a breast cancer operation in Hong Kong with regular medical follow-up thereafter at various hospitals in Hong Kong that she fears she may be deprived of such treatments if refouled to Indonesia.     

10.  There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

11.  Accordingly, by a letter dated 18 March 2024 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”).

12.  The immigration officer did not hold any screening interview for the Applicant’s request, and proceeded to deal with it based on the following information and material provided by her lawyer (see [9] of Director’s decision): 

(1)  The Applicant’s statement including inter alia the following information:

(a)  That she underwent surgery in around 2016 and is still taking medication, and fears that if she is returned to Indonesia, she will not be able to receive medical attention and her cancer might come back. In fact, 2 weeks ago that she had to go to the Casualty Ward of the Tuen Mun Hospital for urgent treatment of her chest pain which she continues to suffer after the surgery for removal of her breast cancer, and that her doctor has warned her to be careful with her diet, her emotion and her daily chores;

(b)  That if she is refouled to Indonesia, internal relocation will not be possible as she does not have the financial means to do so, nor does she have any family members to help her;

(c)  That she does not think the Indonesian authorities would be able to offer help or protection, as she does not have the means to bribe them.   

(2)  A copy of her medical appointment slip for 21 September 2015 issued by Pok Oi Hospital Physiotherapy Department;

(3)  A copy of her medical appointment slip for 30 March 2016 issued by Tuen Mun Hospital Clinic Oncology;  

(4)  A copy her medical appointment slip scheduled for 22 November 2024 issued by Tin Shui Wai Hospital;

(5)  A copy Refill Prescription Coupon issued to her by Tin Shui Wai Hospital with the next refill date on 27 June 2024.   

13.  By a Notice of Decision dated 10 July 2024 the Director refused to allow the Applicant to make a subsequent claim upon finding that the basis of her fear of being harmed by her husband and/or creditor was essentially the same as that of her previous claim, while it is not accepted that her claimed fear of being deprived of the follow-up medical care related to her previous cancer surgery which she has been receiving regularly in Hong Kong upon her refoulement to Indonesia would amount to a significant change of circumstances since her previous claim was determined, or that such change when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success given that relevant COI show that similar medical care and treatments would also be available to her in Indonesia.

14.  On 5 August 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Director made an error in his determination that there is no realistic prospect of success in the Applicant’s subsequent claim by setting too high the threshold for leave to be granted for non-refoulement claims when people’s lives are at risk;

(2)  That the Director’s determination of the Applicant’s request is nothing but biased observations that are designed to reject her claim and lacked completeness and evidence;

(3)  That the Director failed to give sufficient attention to the matters in support of the Applicant’s subsequent claim before reaching a conclusion which he had already made up his mind to deny her the opportunity to make a subsequent claim;

(4)  That the Director had overlooked the consideration of any relevant COI based on her religious belief and instead based solely on the credibility grounds without supporting COI that his observation lacked proper justification and did not provide a solid basis for dismissing her case;

(5)  That the Director failed to give the Applicant the opportunity to undergo a screening interview regarding her subsequent claim as it was crucial that she could personally explain the matters to the Director especially concerning the new risk involved in her situation;

(6)  That the Director failed to consider important factors that were not mentioned in the written discussion and had overlooked crucial evidence or failed to fully consider all the proof presented.            

15.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary details or particulars or elaboration as to how they apply to her case, or in what way did the Director or the immigration officer err in the decision or that it was unfair or unreasonable, or what error did the Director make in the determination that there is no realistic prospect of success in her subsequent claim, or in what way was the Director’s determination biased against the Applicant or failed to take proper consideration, or what evidence that the Director had overlooked in his determination of the Applicant’s request, while it was entirely within the Director’s discretion to decide whether to hold a further screening interview for the Applicant based on the amount and adequacy of the evidence in writing provided by her and her lawyer in support of her subsequent claim which consisted essentially of just a few medical appointment slips some 7 or 8 years apart from each other, and for which I do not find any error on the part of the immigration officer of not to hold any screening interview for her request in the correct exercise of discretion. As such, and as none of these assertions were properly or adequately elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

16.  There is no question that a claim to resist removal by reference to ill-health which the claimant argues may violate his or her rights under Article 3 of the European Convention on Human Rights, or BOR 3 of our HKBOR, is one of the most controversial questions which the law of human rights can generate, as noted by Lord Wilson of the UK Supreme Court in the case of AM (Zimbabwe) v Secretary of State for the Home Department [2020] UKSC 17, but the procedural requirements for such a claim are clear as set down by the European Court of Human Rights (“ECtHR”) in Paposhvili v Belgium (2017) Imm AR 867, reaffirmed in Savran v Denmark (Application no. 57467/15, and adopted by the UK Supreme Court in the AM case above, and which can be summarized as follows:

(a)  That it is for the applicant to adduce before the returning state evidence capable of demonstrating that there are substantial grounds for believing that if removed he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3;

(b)  That where such evidence is adduced in support of an application under Article 3, it is for the returning state to dispel any doubts raised by it by subjecting the claimed risk to close scrutiny, and to address relevant COI including reports of reputable organizations about treatments in the receiving state;

(c)  That it is for the returning state to verify on a case-by-case basis whether the care generally available in the receiving state is in practice sufficient to prevent the applicant from being exposed to treatment contrary to Article 3, and also to consider the accessibility of the care treatment to the particular applicant including by reference to its cost if any, to the existence of family or social network, and to its geographical location; and

(d)  That if serious doubts continue to surround the impact of removal, the returning state has to obtain an individual assurance from the receiving state that appropriate treatment would be available and accessible to the applicant.

17.  In the present case, and mush as I am sympathetic to the Applicant’s situation, it is clear to me that the immigration officer was correct to find that she failed to demonstrate that there are substantial grounds for believing that if removed to her home country in Indonesia that she would be exposed to a real risk of being subjected to treatment contrary to BOR 3 or any other risk under any of the applicable grounds when she simply produced a few medical appointment slips resultant from her breast cancer surgery some 8 years ago, and that there was never any evidence or information from her as to what those appointments were for other than the usual follow-up care to ensure no relapse of her cancer, nor was there any suggestion of any new medical issue that she may now have other than some bare assertion of chest pain when at all material time that she was represented by a lawyer from DLS who could have easily obtained on her behalf any such medical evidence from those hospitals identified in her medical appointment slips.         

18.  Furthermore, it is also clear from those relevant COI referred to by the immigration officer that there is nothing to suggest that upon her return to Indonesia that the Applicant would be at risk of being deprived of similar medical care and follow-up services for her medical condition resultant from her breast cancer operation of 8 years ago or for any new medical issue that she may now have or in future in Indonesia.                                

19.  In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her 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