Case Document

100%Judiciary

HCAL 316/2018

[2018] HKCFI 2262

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 316 of 2018

BETWEEN

	Siti Khotimah	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 40-year-old national of Indonesia who last arrived in Hong Kong on 19 July 2012 with permission to work as a foreign domestic helper until the expiration ofher employment contract or within 14 days of its early termination. When her employment contract was prematurely terminated on 27 February 2014 she did not depart and instead overstayed until she was arrested by police on 24 April 2014. 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 or killed by the creditors of her husband for his failure to repay his loan. She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Dusun Simpar, Malang, Ponco Kusumo, Jawa Timur, Indonesia. After leaving school she married her husband who was a farmer and they have two children.

3.In 2009 the applicant started working as a foreign domestic helper in Hong Kong. One day in early February 2014 she received a phone call from her husband that he had borrowed some money from a bank and asked her to make monthly remittance to him in Indonesia to assist him with his monthly repayments to the bank.

4.However, after her employment was terminated on 27 February 2014 she was unable to make any further remittance, but she did not depart as she was trying to find other employer in the hope that she could continue to work and hence she overstayed in Hong Kong.

5.In March 2014 she received two SMS messages in her mobile phone from some unknown persons threatened that if she did not repay her husband’s loan, both of them would be killed, and when she tried to call back to find out more about these messages and to explain her situation in Hong Kong, she was unable to make any further connection.

6.Sometime thereafter she received a call from her mother that some men had come to her home looking for her husband for repayment of his loan but her husband had left and disappeared, and when the applicant tried to contact her husband she was unable to do so. She had since lost all contact from either her husband or her family as well as her first mobile phone with the record of the two SMS messages, and after her arrest by the police she raised her non-refoulement claim for which she later completed a Non-refoulement Claim Form on 26 October 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 10 December 2015 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 took into account of all the relevant circumstances of the applicant’s case found her claim based entirely on speculation and hearsay without anyevidence of her having any involvement in her husband’s loan and therefore not personally liable to its repayment, that her claim that she had lost her first mobile phone and hence also the SMS messages was too convenient to be credible, that in the absence of any reliable evidence of any threats or ill-treatment from her husband’s creditors that there is no valid ground or reason to believe that there is any real risk of harm from them upon her return to Indonesia, that the absence of any official involvement means that state or police protection would be available to her 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 253 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 area away from her home district such as Jakarta, Bandung, Cirebon or Semarang where it would be difficult if not impossible for her husband’s creditors to locate her.

9.By a Notice of Further Decision dated 20 January 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation for her to submit additional facts which 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 28 December 2015, and for which she attended an oral hearing on 17 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 1 December 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board upon hearing the applicant in evidence found her alleged threats from her husband’s creditors and her subsequent loss of her phone and hence the SMS threatening messages conflicting, unreliable and unconvincing, that even if those threats were true that there is nothing to suggest that they were nothing more than attempts to put pressure on her to repay the loan if such loan is still outstanding for which she can seek state or police protection, and that it would not be unreasonable or unsafe for her to relocate to other cities within Indonesia such as Surabaya, Jakarta or Bandung.

12.On 28 February 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 set out her grounds for her intended challenge which can be summarized as follows:

(1) procedural impropriety in the adjudicator’s failure to realize her fear and her assertion in her claim and for rejecting her account on her credibility;

(2) lack of legal representation or assistance for her in her appeal before the Board; and

(3) unreasonableness in the adjudicator’s decision not to have found that there is substantial ground for believing that she would be in danger of being subjected to torture upon her return to Indonesia.

13.The first and third grounds are 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 adjudicator had erred in his decision or in his findings as to her credibility, for which the adjudicator did make a careful and thorough analysis with proper reasoning in paragraphs 57 – 73 of the Board’s decision. In the premises I do not find any merit in these complaints of the applicant.

14.As for her complaint in ground (2) of not being provided with legal representation or assistance in her 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 applicant already had the benefit of legal representation in presenting her case to the Director, and 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 difficulty and with the assistance of an interpreter. I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, for which the court will not usurp their role as primary decision makers, and in the absence of any legal error or procedural unfairness or irrationality identified by the applicant in their decision, judicial review is not to be treated as an avenue for revisiting the assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

17.Further, as it has been established by both the Director and the Board in their decisions that the risk of harm from her husband’s creditors if real is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Indonesia, there is simply no justification to afford her non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.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.

19.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 12^th day of October 2018.

	(NG Ka-wing)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 12 October 2018 Siti Khotimah Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12 October 2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 2852/15/12/181/I243 Director of Immigration 2^nd Putative Respondent’s ref. no.: INCZ/9000326/16 (Formerly RBCZ /1829/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)