Frisca Ayudya Aryani and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1072/2017

[2018] HKCFI 2033

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1072 of 2017

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 1st 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 1^st applicant (“A1”) is a 46-year-old national of Indonesia who last arrived in Hong Kong on 11 January 2007 with permission to remain as a visitor up to 10 February 2007 when she did not depart but instead overstayed until she was arrested by police on 25 June 2013. After she was 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 or killed by a loan shark for failing to repay her loans.  

2.A1 was born and raised in Gondang Legi Village, Malang District, East Java Province, Indonesia.  After leaving school she married her husband who was a motor mechanic, gave birth to a daughter and became a housewife.  In early 2002 her husband decided to set up his own vehicle service station by borrowing 30 million Indonesian Rupiahs from a loan shark as business capital with the loan repayable within one year and with monthly interest payments at 15 – 20%.

3.However, his business did not flourish and by late 2002 he started to default with the interest payments.  One day in January 2003 the loan shark came with two men to his home and demanded for the loan repayment, and when her husband pleaded with them for more time, he was punched on the face by the Loan Shark who threatened to kill him and A1 if the loan was not repaid soon.

4.Thereafter when her husband was still unable to repay the loan, the loan shark and his men would come and take away his machines and other valuable items from his service station and assaulted him and A1 with punches and kicks, and from one particularly violent assault in May 2003 A1 suffered a knife cut to her left wrist while her husband had bruises and swelling all over his body.

5.After that assault her husband closed down his business and fled elsewhere to hide from the loan shark, while A1 placed her daughter in her sister’s care and left Indonesia to avoid the threats in October 2004 for Hong Kong where she worked as a foreign domestic worker.

6.In early 2005 A1 was told by her husband that he had sold their house to make partial repayment of his loan to the loan shark, but after that she heard nothing further from him until June 2005 when she was informed by her neighbor that her husband had fallen sick and later passed away.  Thereafter A1 heard nothing further about situation back home, but when her employment contract was terminated in September 2006, she did not return to Indonesia and instead went to Macau and later returned to Hong Kong where she overstayed and formed a relationship with a Pakistan man with whom she later gave birth to A2 in 2009.

7.In June 2013 after A1 was arrested for overstaying in Hong Kong, she lodged her non-refoulement claim for herself and A2, and after obtaining legal representation from the Duty Lawyer Service (“DLS”), she completed a Non-refoulement Claim Reform (“NCF”) for herself on 13 April 2016 and for A2 on 17 May 2016 that in addition to her fear of being harmed or killed by her husband’s loan shark, that she and A2 would also be discriminated and rejected by the Indonesian society for being a single mother having given birth to A2 as an illegitimate child if refouled to Indonesia.

8.By a Notice of Decision dated 10 August 2016 the Director of Immigration (“the Director”) rejected the applicants’ 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”).

9.In his decision the Director having regard to all the relevant circumstances of the applicants’ claim assessed that the level of risk of harm from the loan shark upon their return to Indonesia as low after all these years when A1 left in 2004, that in the absence of any evidence of any official involvement in the threats that state or police protection would be available if resorted to, that objective Country of Origin Information (“COI”) show that the Indonesian government has taken positive steps to protect its citizens from all forms of discrimination and that A1’s perceived concern of rejection or discrimination against her and A2 is based on her own perception unsupported evidence and of which they can seek state protection or support from other government departments or NGO, and that reliable COI also 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 A1 as an able-bodied adult with work experience to move with A2 to other areas away from her home district such as Jakarta that it would be difficult if not impossible for the loan shark to locate them.

10.By a Notice of Further Decision dated 11 August 2017 the Director again rejected the applicants’ claim in the absence of any response from them to an earlier invitation for them to submit additional facts which may be relevant to their 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”).

11.By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal they filed on 23 August 2016, and for which they attended an oral hearing on before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board. On 30 November 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found A1’s claims relating to the loan shark and the alleged difficulties repaying the loan in Indonesia entirely lacking in even the most basic levels of coherence, details or fundamental credibility that the adjudicator had no doubt that it is simply a fabrication and that no credence whatsoever can be given to it.  As for A1’s concerns about discriminations in Indonesia due to her relationship outside of marriage in Hong Kong with A2 being born out of wedlock, while accepting that single women with children in such situation may face certain level of discrimination amounting to community stigma and negative perception particularly in rural areas according to some COI, it does not however raise a risk of any physical harm or that any such discrimination would rise to the level of serious harm that would put the applicants’ claim within any of the applicable grounds.

13.On 14 December 2017 A1 filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, for which she was later granted leave to include her son as A2, and in their supporting affirmation of the same date they set out their grounds for their intended challenge as follows:

(1)  lack of legal representation in their appeal before the Board;

(2)  lack of language assistance in not providing them with any translation of their NCF to enable them to find out if the interpreter had translated the basis of their claim properly;

(3)  failure on the part of the Director to give proper explanation for rejecting their claim under BOR 2 risk;

(4)  lack of fair hearing on the part of the Director for rejecting their claim under BOR 2 risk in a proper or fair manner, and for failing to give reason as to why the attendance of the Director or his representative at their appeal hearing before the Board was not required.

14.For the complaint in ground (1) of not being provided legal representation in their appeal before the Board, 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 37, and Re Zafar Muazam [2018] HKCA 176.

15.The applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in her appeal hearing before the Board and to answer questions put to her by the adjudicator without any difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

16.As for the complaint under ground (2) of not being provided with a translation of their NCF, it is clear that their NCF was completed on A1’s instructions to their legal representation from DLS, and that she was assisted by an interpreter at the appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of their claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicants simply speculative and without merit.

17.Regarding his ground (3) it is plainly wrong for the applicants to claim that no explanation was given by the Director in rejecting their claim under BOR 2 risk, which the Director clearly did in paragraphs 4 – 6 of his Further Decision in which the applicants’ previous representation and available evidence were again considered by the Director in the absence of their response to an earlier invitation for them to submit additional facts which may be relevant to their claim under BOR 2 risk, and with reasons given for his rejection of their claim.  There is simply no merit in this ground of the applicants.

18.As for the complaint under their last ground over the non-attendance of the Director at their appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for the appeal which is a rehearing of the applicants’ claim to be before a different person is actually a safeguard for fairness, and I fail to see how they could be prejudiced or adversely affected by the non-attendance of the Director at their appeal hearing before the Board.  There is also no basis or merit in this ground of the applicants either.

19.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 applicants’ claim.

20.For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their 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