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

HCAL 411/2018

[2019] HKCFI 257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 411 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 35-year-old national of Indonesia who last arrived in Hong Kong on 15 September 2009 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 September 2011 or within 14 days of its early termination, but when her contract was prematurely terminated on 20 March 2010, she did not depart and instead overstayed until she was arrested by police on 15 December 2010, for which she was convicted and sentenced to four weeks’ imprisonment suspended for three years, and while being detained at the Castle Peak Bay Immigration Centre pending deportation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her mother’s creditor for refusing to marry him in lieu of repayment of her mother’s loan, and when her torture claim was rejected she lodged a non-refoulement claim for protection on the same basis.  She has since been released on recognizance pending the determination of her claim. 

2.The applicant was born and raised in Sub-district Majenang, Cilacap Regency, Central Java, Indonesia where her parents and siblings still live.  After leaving school she worked as a domestic helper first in Jakarta and then in Singapore.

3.In about 2004 she was told by her elder sister that her parents were in debts and that all her monthly remittance to them from her salaries had been used to repay their debts.

4.In 2007 she started to work as a foreign domestic helper in Hong Kong and continued to remit money to her parents from her salaries, but when her employment contract was completed in 2009, she was asked by her mother to go home in Indonesia where she was told to marry her mother’s creditor who was a loan shark so as to set off the family’s debts, to which the applicant refused and moved to stay at her elder sister’s place in West Java.

5.Several days later the applicant heard from her younger brother that the loan shark had been to her parents’ home looking for her, and when he failed to find her there, he said he would go look for her at her sister’s place.  When the loan shark arrived, the applicant went to hide in a neighbour’s home, and was later told by her sister that before the loan shark left, he threatened to use violence and black magic against her if she still refused to marry him.

6.The applicant remained hiding in her sister’s place for the next several months without any further encounters with the loan shark, but when she started to feel sickly all the time and when the medicine from her doctor were of no help, she suspected that the loan shark had used black magic on her, and decided that it was no longer safe to remain in Indonesia.  She therefore returned to Hong Kong in September 2009 to work under a new contract, during which she heard from her family that the loan shark had continued to look for her and for which he even had a fight with her brother-in-law, and as a result she was told by her family not to return to Indonesia for her own safety, and so when her contract was prematurely terminated, she overstayed in Hong Kong and raised her torture claim, and after its rejection she then lodged her non-refoulement claim, for which she completed a Supplementary Claim Form on 22 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 6 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on the then applicable grounds including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

8.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by the loan shark upon her return to Indonesia in the absence of any factual evidence other than some hearsay information from her family to support her alleged fear of such risk from someone whom she did not even know the name and never met before, that it was in any event a private and personal dispute 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 of 230 million people spread across a vast territory of more than 700,000 square kilometers 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 in large cities such as Jakarta where it would be difficult if not impossible for the loan shark to locate her.   

9.Despite a notice given at the conclusion of the Director’s decision that she could lodge an appeal/petition within 14 days to the Torture Claims Appeal Board (“the Board”) against that decision, the applicant somehow never did, and the time for her to do so expired on 20 February 2015.

10.On 28 October 2016 the Director on his own initiative in writing invited the applicant to submit additional facts which she may consider 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”).

11.On 9 November 2016 the applicant submitted a letter to the Director to reserve her right to be screened for grounds for her BOR 2 risk without providing any additional facts or representation or arguments as to how such risk applied to her case.

12.By a Notice of Further Decision dated 16 November 2016 to the applicant the Director again rejected her claim on all applicable grounds including BOR 2 risk for the following reasons:

“ 3.  In your letter, you reiterated that you reserved your right to be screened for grounds of non-refoulement relating the right against arbitrary deprivation of life under article 2 of HKBOR and have not provided any fresh or additional materials or facts on any other absolute and non-derogable rights under HKBOR, particularly BOR 2 risk, for our consideration of your non-refoulement claim on all applicable grounds.

4.  In the light of the high standards of fairness required for screening non-refoulement claims under USM, we have taken the liberty to further consider whether you will be subject to any risk of your absolute and non-derogable rights under the HKBOR being violated upon your removal to another country (including right to life under BOR 2), in the light of the assessment on the risk of your feared treatment materializing upon your return to Indonesia as set out in the Notice of Decision dated 6 February 2015.  In this connection, as mentioned above, you have no additional facts and materials to submit; and you have also been advised by letter dated 28 October 2016 that the ImmD’s previous decision (including the assessment on the risk of your feared treatment materializing upon your return to Indonesia) dated 6 February 2015 on your risk of being subjected to torture, CIDTP and persecution risks upon your return to Indonesia will not be affected.”     

13.The applicant then lodged an appeal to the Board against this decision of the Director, and in her Notice of Appeal she stated as follows:

“ The reason why I refuse of Immigration decision for refusal of my case because I feel my life is threatened in my country of origin—Indonesia.

Because until this moment, the problem that I face make me threatened and I cannot go home to my country, because in my country, my family owe debt to a money lender, and that money lender until now still threatens me. If I go home to my country, he will take action to harm me and even kill me.

And my family strongly hopes that I do not go home to my country, which is Indonesia.  That is why I request strongly please consider again my case.”

14.The Board did not hold any oral hearing for the applicant’s appeal, and on 7 March 2018 dismissed it after finding what the applicant had stated were not relevant to or engage any BOR 2 risks. 

15.On 13 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board regarding her claim under BOR 2 risk, and in her supporting affirmation of the same date she put forward her grounds for the intended challenge which can be summarized as follows:

(1)  that the decisions of the Director and the Board were biased and prejudicial against her;

(2)  that they adopted a formulistic approach on all claims instead of approaching her case individually based on her evidence and merits; and

(3)  that it was procedurally unfair for not providing her with any hearing or legal representation for her claim under BOR 2 risk either before the Director or the Board.    

16.Her complaints under the first two grounds are just some vague and broad assertions without any particulars or elaboration as to how the Director or the Board were being biased or prejudicial against her, or in what way was her case not being approached based on her evidence or merits when clearly the factual account and evidence of her claim were properly recorded, considered and analyzed by both the Director and the Board in their respective decisions when both correctly concluded that the applicant had merely regurgitated her claim as before without any additional facts in support of BOR 2 risk. Having considered their decisions with rigorous examination and anxious scrutiny, I do not find any basis or merits in either complaints of the applicant.    

17.As for her complaint in ground (3) of not being provided any oral hearing or legal assistance for her claim under BOR 2 risk, clearly there is no absolute entitlement to a BOR 2 oral hearing, and that the applicant did not submit any additional facts or grounds for her claim under BOR 2 risk either before the Director or the Board to warrant such hearing, nor has she put forward any additional facts or explanation in her application now before me which she would have put before either of them at an oral hearing that could advance her claim under BOR 2 risk: see Re Riaz Yasmeen [2018] HKCA 576.

18.Similarly, the Court of Appeal has 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. Accordingly I do not see any merit in this complaint of the applicant either.

19.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.

20.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 8^th day of March 2019.

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