Santi Diana Sari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 141/2018

[2018] HKCFI 2058

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 141 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 31-year-old national of Indonesia who last arrived in Hong Kong on 29 November 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 February 2016 or within two weeks of its early termination.  On 11 December 2014 when her contract was prematurely terminated, she did not depart accordingly and instead overstayed until she was arrested by police on 6 August 2015.  After being referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed by her father for refusing to marry his creditor so as to write off his debt and by his creditor for his failure to repay his loan.  She has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Kotabumi, Lampung, Sumatera Selatan, Indonesia.  In 2007 her mother left her father and the family, and her father who was out of a job started to drink heavily.  One night while he was drunk he came into the applicant’s room and raped her.  The applicant was traumatized but did not tell anyone about it, nor did she report it to the police.

3.Two months later her father started to put pressure on her to marry a loan shark SK to whom he was heavily in debt and in the hope that it would be written off.  The applicant however refused and ran off with her grandmother to her grandfather’s house in Malang, but and when her father came looking for her in Malang to press her to return to Sumatera to marry SK, the applicant decided to leave Indonesia by making arrangements with her employment agency to come to Hong Kong to work as a foreign domestic helper, which she eventually did in 2010 for her first employment contract.

4.In about 2014 her father found out from her grandmother that the applicant had come to work in Hong Kong and started to demand money from her for repayment of his loan and threatened that he would stop supporting the grandmother if she refused to pay him, and so the applicant agreed to make monthly remittance to him from her salary.

5.In November 2014 her grandmother passed away and when the applicant took a two weeks leave from her employment to return to Indonesia for her grandmother’s funeral, her father again pressed her to marry his creditor and on one occasion attempted to rape her but got distracted by other guests in the house and the applicant was able to run away to hide in a friend’s place.  Thereafter she started to receive harassing and threatening text messages from both her father and SK pressing her to marry SK but the applicant soon returned to Hong Kong to continue with her employment.

6.Those text messages from her father and SK however would continue until the applicant changed her phone number when she has since not heard from either of them, but when her employment contract was prematurely terminated in December 2014, she was afraid that if she returned to Indonesia she would be harmed by her father and SK, she therefore overstayed in Hong Kong, and after she was arrested and a removal order was issued against her, she lodged her non-refoulement claim and completed a Non-refoulement Claim Form (“NCF”) on 21 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 22 August 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found no evidence that her father and SK are still looking for the applicant after all these years and hence the risk of harm from them upon her return to Indonesia is low, that in the absence of any official involvement that state and police protection would be available to the applicant if resorted to, and that reliable Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of more than 256 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from her home district such as Jakarta where it would be beyond the means and resources for her father or SK to locate her.

9.By a Notice of Further Decision dated 20 October 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 5 September 2016 but failed to appear at the oral hearing scheduled on 7 November 2017 before the Board without any explanation.  No further oral hearing was provided by the Board, and on 12 January 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board doubted that realistically the applicant’s father would be able to force her to marry SK or that any real harm would come from SK who has never even met the applicant let alone to be able to find her in Indonesia, that in any event police protection would be available to the applicant, and concluded that she has failed to establish her claim under any of the applicable grounds.

12.On 31 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 grounds for her intended challenge:

(1)  procedural impropriety/unfairness in their failure to carry out sufficient research and inquiry into COI, or to conduct a critical analysis of the relevant COI or to provide any explanation for preferring certain COI over the others, and for cherry picking COI to support their decisions;

(2)  procedural impropriety in the Board’s decision to deal with her appeal in her absence as she never received its notice of the oral hearing at her address already provided to the Board; 

(3)  procedural impropriety in the Board’s failure to consider her claim properly by unfairly criticizing her for making no mention of the attempted rape incident in her written representation and therefore doubted the truthfulness of her such claim;

(4)  error/misdirection in law for failing to consider the psychological harm upon her as a result of the events stated in her claim including the death threats made against her; and

(5)  error/misdirection in law for failing to properly apply the guidelines of the UN Committee Against Tortures and improperly restrict their consideration as to whether reforms have shown signs of improvement and have become more effective.

13.The complaints under grounds (1), (4) and (5) are just some 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 Board or the adjudicator had erred in the decision, or in what way did they fail to take into account of what relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy is the effectiveness of reforms in general has to do with her claim.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14.Regarding her complaint under ground (3) of the Board doubting her claim of the attempted rape due to her failure to raise the incident in her written representation, of which the relevant part of the Board’s decision can be found as follows:

“ 33. Turning to the claim that her father attempted to rape her in 2014 at her grandfather’s house in Malang. In the NCF, the Applicant stated that this incident occurred at night when she was making her bed. She stated that her father stormed in and pushed her down on her bed but he was distracted by other guests who were attending her grandmother’s religious prayers. She stated that she seized the chance to leave the house …

…

35. … in contrast to the specific and detailed evidence provided in the NCF regarding the 2007 rape incident, the Applicant has provided little details relating to the 2014 attempted rape incident.  The Applicant has not elaborated on the circumstances in which her father got distracted.  Nor has she explained how she managed to pick up her personal belongings while seizing the chance to leave the house.”

15.It is therefore not factually correct for the applicant to complain that the Board doubted her alleged attempted rape incident because she failed to raise the incident in her written representation, which was not the reason for the Board’s doubt but for her lack of details or elaboration provided in her written representation, which is in my judgment part of the evaluation process which the adjudicator was entitled to undertake of the available evidence, and that in the absence of any legal or factual error being identified by the applicant, I do not see any justification usurping the Board’s role as primary decision maker over this issue. 

16.As for her claim in ground (2) of not receiving the letter or notice from the Board informing her of the oral hearing, and therefore it follows that she was deprived of an opportunity to make representation for her appeal before the Board, this is what was stated in the Board’s decision about her failure to attend the hearing on 7 November 2017:

“ 14. The Notice of Hearing dated 29 September 2017 was posted to the last known correspondence address provided by the applicant to the Director. It was served on the parties not less than 28 days before the scheduled hearing, notifying them of the date, time and place of the hearing. On the day before the hearing, unsuccessful efforts were also made by the Board to contact the Applicant by phone.

15. The Applicant has been given a reasonable opportunity to present her claims.  She has not taken up the opportunity to attend an oral hearing.  Having regard to the high standards of fairness required and the particular circumstances of this case, I have proceeded to determine the appeal/petition.”

17.It therefore seems clear to me that even if the Notice of Hearing indeed did not reach the applicant at her last known address provided to the Director because she had moved to a new address, of which the burden is on her to update the Director and/or the Board and that it was not her fault that the Notice was not sent to her correct address but which she has not produced any evidence that it was indeed the case, the fact is that she could not be contacted by the Board the day before the oral hearing either, and for which she has also failed to provide any explanation.

18.As stated by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, there is no absolute entitlement to oral hearing, and that it is ultimately a question of fairness in the circumstances of each case, as elaborated by Cheung CJHC in paragraph 26 of his judgment:

“ … there is no absolute right to an oral hearing. Amongst other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issue involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.”

19.Here the applicant had in fact been afforded an oral hearing which she failed to attend without providing any valid or acceptable reason or explanation, and given the fact that she had already made full and proper representation of her case and attended screening interview before the Director with legal representation, and given the particular nature of her claim, of which even in her present leave application with an oral hearing before me that she did not make any further representation, I do not find in the circumstances anything amiss arising from her not being provided with a further oral hearing by the Board in its consideration of her claim.

20.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.

21.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 September 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