Caswati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1/2018

[2018] HKCFI 1882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1 of 2018

BETWEEN

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 46-year-old national of Indonesia who failed to leave Hong Kong after 28 June 2014 upon the expiration of her employment contract as a domestic helper and overstayed in Hong Kong until 16 February 2016 when she surrendered to the Immigration Department.  On 3 August 2016 she lodged her non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband’s creditor for failing to repay his debts.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Cibunying, Majenang, Cilacap, Central Java, Indonesia.  After leaving school she worked as a domestic helper in various countries and married her husband.  In 2001 her husband borrowed 200 million Indonesia Rupiah from a man SJ for gambling and drinking to be repaid in five years at a monthly interest payment at 20% of the principal with the applicant named as the guarantor and her house and her mother’s provided as collateral.  She did not know much about the creditor other than that he was the son of the village head as told by her husband. 

3.In 2006 when the repayment of the loan became due but when her husband was unable to do so, and while the applicant was working elsewhere, she was told by her husband of being assaulted by his creditor with a knife and suffered injuries to his left cheek and his right ear.  In 2008 when the applicant came to Hong Kong to work as a domestic helper, she would make monthly remittance to her husband to assist him in his loan repayment until February 2011 when she ceased her remittance, and in May 2011 she was told by her mother in Indonesia that her husband had been killed by his creditor, that her house and that of her mother had been confiscated by the creditor as collateral, and that the creditor had demanded the applicant to pay for the shortfall of the loan or else she would also be killed.

4.In November 2012 the applicant returned to Indonesia for holiday during which she stayed at her friend’s place in Surabaya for two weeks without any incidents, but when her employment contract expired in June 2014, she overstayed in Hong Kong until 2016 when she surrendered to the Immigration Department and lodged her non-refoulement claim for which she completed her Non-refoulement Claim Form on 6 June 2017 with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 29 June 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 (“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”).

6.In his decision the Director found the absence of any ill-treatment to the applicant from her husband’s creditor in the past indicative no future risk of harm upon her return to Indonesia, that it was a pure private monetary dispute that state or police protection would be available to the applicant if resorted to, and that objective and reliable 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 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 safely to other areas away from her home district such as Surabaya or Jakarta that it would be difficult if not impossible for her husband’s creditor to locate her.     

7.On 11 July 2017 the applicant filed her appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, which was dealt with by the adjudicator on paper without any oral hearing, and on 21 December 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board agreed with the Director that the absence of any ill-treatment to the applicant from her husband’s creditor does not put her case within any of the applicable risks, that her problem with her husband’s creditor was a private monetary dispute that state and police protection would be available to her if resorted to, and that reasonable internal relocation alternatives in other cities in Indonesia are also viable options to her that would be beyond the means or resources of her husband’s creditor to locate her.

9.On 2 January 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 supporting affirmation of the same date she put forward the following ground for her intended challenge:

(1)     procedural impropriety in the Board’s failure to provide her with an oral hearing to enable her to properly present her claim including the danger which she would face upon her return to Indonesia and the opportunity to provide new facts or information in support of her claim;

(2)     unfairness in the Board’s failure to apply high standard of fairness in its consideration of her claim;

(3)     procedural impropriety in the Board’s failure to conduct sufficient independent inquiry into relevant COI including cherry-picking of material or to provide proper reasons as to why the COI material support its decision; and

(4)     error/misdirection in law in the failure of the Director and the Board to consider the psychological impact of the facts in her claim including the injuries and abusive language which she was subjected to.   

10.Of the applicant’s complaint of procedural unfairness in ground (1) for not being given any oral hearing by the Board, the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277 held that there is no absolute entitlement to oral hearing which is a matter of discretion and ultimately a question of fairness looking at the overall circumstances.  Here in deciding whether to call for an oral hearing or a paper review, the adjudicator did remind himself of the principle set out in that Court of Appeal’s decision, and then proceeded to ask himself the following questions:

(a)     whether there was anything missing from the applicant’s case which might be brought out in an oral hearing;

(b)     whether there was any point of fact or law which might be better brought out;

(c)     whether there was any authority, for or against the applicant that should be addressed;

(d)     whether there was any need for further questions, especially where an adverse inference may be drawn from the facts, in which case the applicant should have the chance to address the point;

(e)     whether there was any general advantage in holding an oral hearing, even though it might occasion extra trouble and expense; and

(f)     whether in the name of overall fairness that the applicant might have anything useful to contribute by way of being heard. 

11.The adjudicator found that in each case his answer was in the negative, and also noted that the applicant’s claim was dealt with by the Director on the same facts when she was legally represented before arriving at his decision to deal with her appeal without any oral hearing.   

12.As for the applicant complaint that she was deprived of the opportunity to provide new facts or information of the danger she would face in Indonesia, as noted by both the Director and the Board, she had had no further contact with her mother since 2013, nor had she any updates regarding the situation in her home country other than her asserted fear that the creditor would harm her upon her return to Indonesia.  If indeed she did have any new facts or information which might support her claim, she could have submitted them to the Board prior to its decision in December 2017 but she did not, nor did she at the oral hearing of her leave application now before me.

13.The facts of the applicant’s claim were clear and straightforward before the Board, as were before the Director, and in the light that they were accepted by the Board as put before it before proceeding to find that the applicant had failed to prove that she was ever personally at risk, and with state protection and internal relocation alternatives available to her upon her return to Indonesia, of which the adjudicator was entitled to do on the facts and COI presented before the Board.  It was a proper exercise of discretion and I cannot find any procedural unfairness or any reasonable basis to criticize the adjudicator for determining the applicant’s appeal without a hearing.    

14.The remaining grounds are all just broad and vague assertions of the applicant 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 decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, while her complaint of failure of the Director and the Board to take into account of the psychological impact of the injuries and abusive language which she had been subjected to is clearly factually wrong as any threats from her husband’s creditor to her were based on hearsay only while she was in Hong Kong and that she was never directly threatened let alone being injured or abused by the creditor.

15.The fact is that once it has been established by both the Director and the adjudicator 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 parts of Indonesia, they were entitled to come to their conclusion that there is no justification to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526. 

16.In the premises and having proceeded to consider 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.

Dated the 14^th day of August 2018.

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