Imbang Winarni Marsaid v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 2267/2018

[2019] HKCFI 1648

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2267 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 the Applicant being absent 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 12 November 2003 with permission to remain as a visitor for a limited period but she did not subsequently depart and instead overstayed until she was arrested by police on 23 August 2012 and was subsequently charged for overstaying and undertaking unauthorized employment, for which she was convicted and sentenced to prison for 10 months. Upon her release from prison and before her repatriation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for refusing to assist him in repaying his debt and/or by his creditor.  She was subsequently released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Desa Suruhwadang Sub-district, Kademangan District, Blitar Province, East Java, Indonesia.  After leaving school she worked as a foreign domestic helper in Hong Kong in 1997, and married her husband in 2001 when she was visiting her family in Indonesia during her holiday break from her employment.

3.Shortly after marriage her husband informed her that he had borrowed a loan from his creditor to start his own business in Indonesia and requested her to remit money from Hong Kong to assist his loan repayment, but later when she found out that her husband never started any business in Indonesia and had instead spent all his loan on himself extravagantly, she therefore stopped her monthly remittance to him, and for which he had sent text messages to her for money or else he would kill her.

4.Soon some persons claiming to be sent by her husband’s creditor had approached the applicant in Hong Kong with threatening demands for her to make repayments of her husband’s loan, but she did not make any report to the police and instead just hid from them, and when her last employment contract ended in 2003 and when she was unable to find another employment, she overstayed in Hong Kong during which she had no further contact from her husband or his creditor, but upon her arrest in 2012 and her release from prison she raised her non-refoulement claim, for which she later completed a Non-refoulement Claim Form (“NCF”) on 26 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

5.By a Notice of Decision dated 25 May 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 or 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 took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her husband or his creditor to the applicant upon her return to Indonesia as low due to the absence of past ill-treatment from them, that her problems with them were domestic or personal monetary disputes 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 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 work experience to move to other part of Indonesia away from her home district in large cities such as Surabaya where it would be difficult if not impossible for her husband or his creditor to locate her.

7.On 7 June 2017 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 6 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 12 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board had significant concerns with the credibility of the applicant’s claims in particular of her alleged marriage to her husband and the threats from him or his creditor that it was not persuaded of the veracity of her core claims to have any subjective fear of harm from them over the lengthy period of her overstay in Hong Kong, and concluded there was not a real risk that the applicant would face any of the proscribed forms of harm should she return to Indonesia and that her non-refoulement claim therefore failed on all applicable grounds.

9.On 19 October 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  procedural unfairness in that the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(2)  procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  procedurally unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4)  procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  procedural unfairness in that the hearing bundle was given to her just six days before the appeal hearing with the majority of documents in English thereby giving her insufficient time to prepare for her appeal and in view of her limited skills in English and being unrepresented before the Board; and

(6)  that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated resulting in groundless speculations that it would be safe for her to return to her country of origin.

10.Shortly before the oral hearing of her leave application before me, the applicant filed a further affirmation on 25 April 2019 stating that she wanted to go back to her home country and asking for assistance without any details or what assistance that she was seeking, and when she did not respond to a letter dated 24 May 2019 from the Court for her to clarify her statement or to appear in Court at her oral hearing on 20 June 2019 without any explanation, I decided to proceed to deal with her leave application as such and to consider the merits thereof by referring to her proposed grounds.

11.They are however mainly just broad and vague assertions of the applicant containing several key words and phrases but 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 the adjudicator fail to take into account relevant COI or being hearsay or outdated or improperly rely on irrelevant COI, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and in the absence of which I do not find any basis or merits in any of them, or that any of them is reasonably arguable for her intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal and in view of her limited skills in English.

14.Even if it is true that the hearing bundle indeed came to her late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the applicant as they had earlier all been already made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in her appeal before the Board.

15.The Board rejected the applicant’s claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 61 – 73 of its decision and with the benefit of hearing her in evidence and in answers to questions raised of her claim during her oral hearing before the Board, and in the absence of any error of law or procedural unfairness being clearly and properly identified by her, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.Furthermore, the fact that it has been established by the Director in his 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 part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17.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.

18.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 28^th day of June 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