SRI HANDAYANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2053/2019

[2024] HKCFI 3467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2053 OF 2019

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:

1.  The Applicant is a 42-year-old national of Indonesia who last arrived in Hong Kong on 5 March 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 7 June 2011, she did not depart and instead overstayed, and was arrested by police more than 3 years later on 4 August 2014, for which she was subsequently convicted and sentenced to prison for 12 weeks, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by a local loan shark over her mother’s unpaid debts.

2.  By a Notice of Decision dated 8 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the loan shark upon her return to Indonesia as low due to the absence of any past ill-treatment from the loan shark against her at all, nor was there any evidence of any threats from the loan shark against her other than her mother’s own speculations, that in any event it was a private monetary dispute between her mother and the loan shark 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 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 areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate her.

4.  On 20 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 15 December 2015 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 January 2017, her appeal was dismissed by the Board which also confirmed the Director’s decision.

5.  In its decision the Board accepted the Applicant’s evidence that she had been told by her mother of the threats from the loan shark over her mother’s outstanding debts but found no evidence of any such threats being made directly by the loan shark against the Applicant personally, and that in any event it was a private monetary dispute between her mother and the loan shark only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other areas of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

6.  The Applicant’s subsequent application for leave to apply for judicial review of the Board’s decision was also refused by Deputy High Court Judge Woodcock on 15 September 2017 upon finding none of her proposed grounds for her intended challenge were 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 23/2017).

7.  The Applicant never brought any appeal against the Court’s decision, and meanwhile on 20 March 2017 the Director on his own initiative invited her to submit additional facts which she might consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and after receiving and considering additional materials from the Applicant which were essentially of her same claim as before, the Director by a Notice of Further Decision dated 22 June 2017 also rejected her non-refoulement claim under BOR 2 ground upon finding that she had failed to establish a person and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Indonesia.

8.  On 6 July 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which she attended another oral hearing on 15 May 2019 before the same Adjudicator as before, during which she again gave evidence as to her claim as before and also answered questions raised of her claim on BOR 2 ground by the Adjudicator.

9.  By a decision dated 15 July 2019 the Board dismissed the Applicant’s appeal on BOR 2 ground upon finding that she had exaggerated her evidence which were inconsistent and contradictory to those given in her earlier appeal hearing against the first decision of the Director that undermined her credibility, and that in any event on the factual basis of even her own case of risk of harm from her mother’s creditor that it simply did not engage the BOR 2 ground at all, and concluded that the Applicant had failed to establish any real and personal risk of being arbitrarily deprived of her life if refouled to Indonesia in violation of BOR 2 ground.

10.  On 18 July 2019 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information had resulted in the Board making groundless speculations that it is safe for the Applicant to return to her country of origin;

(6)  That the hearing bundle was given to the Applicant just a few days before her appeal hearing before the Board with the majority of the documents in English thereby given her insufficient time to prepare for the hearing especially due to her limited skills in English and being unrepresented which is procedurally unfair to the Applicant.

11.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied upon by the Board were not officially recognized or were simply hearsays or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

12.  As for her complaint of being provided with the hearing bundle just a few days before her appeal hearing before the Board and with the majority of the documents in English thereby giving her insufficient time to prepare for her appeal due to her limited skills in English, the Applicant did not provide any documentary evidence such as the envelope or covering letter that accompanied the hearing bundle that it was indeed late, and that in any event most of the documents such as her NCF and the record of her screening interview had in fact earlier already been provided to her when she was legally represented by DLS, and that she never raised any such issue to the Board during her appeal hearing when she was able to make full representation of her case to the Board without any problem and with the assistance of an interpreter. In the circumstances I do not find any merits in this complaint of the Applicant either.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective earlier decisions that the risk of harm in her claim even if real 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 on all applicable grounds.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore 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