Nurwati v. Torture Claims Appeal Board

HCAL 617/2018

[2020] HKCFI 1919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 617 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 20 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 August 2015 or within 14 days of its early termination, but when it was prematurely terminated on 21 January 2014, she did not depart and instead overstayed and was arrested by police on 11 June 2014.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to give him money for his spending.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Ngemplak, Sub-District Sine, Ngawi City, East Java, Indonesia.  After leaving school she married her husband and raised a family in their home village.

3.In about 1999 her husband lost his job and when he was unable to find other employment, he became bad tempered and started to become abusive towards the Applicant by yelling at her and pulling her hair and slapping her face at will, resulting in frequent bruises and cuts on her face and body, but she never reported the abuses to the police for fear that he might be arrested and put in jail.

4.In 2003 her husband borrowed a loan to start a small business selling used vehicle parts and accessories, but when that was unsuccessful, he had to sell their home to repay his loan.  As a result the Applicant and their son moved to stay with her parents, while her husband went off to Jakarta to look for jobs.

5.To support herself and their son, the Applicant later in the same year went to Singapore to work as a domestic servant.  Sometime in 2005 when she returned to Indonesia for vacation leave, her husband happened also to be there and demanded money from her for his use which she did pay her whatever she had with her, but he was still not satisfied and proceeded to beat her causing her bruises and a bleeding nose.

6.Upon her return to work in Singapore, the Applicant continued to receive threatening phone calls from her husband demanding for money, and after she completed her employment contract in Singapore in 2011, she then applied to work in Hong Kong in order to avoid her husband, which she did on 6 May 2012 when she arrived to start her first employment contract in Hong Kong and ceased all further contact with her husband.      

7.However, when her last employment contract was prematurely terminated on 21 January 2014, and when she heard from her mother that her husband was looking for her everywhere threatening to kill her for failing to give him any money for his use, she was afraid to return to Indonesia, and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 18 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

8.By a Notice of Decision dated 12 February 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“the Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that their problem was a private domestic 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 255 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 working 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 to locate her.

10.On 22 February 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which the Board did not schedule any oral hearing and dealt with her appeal in her absence and on papers, and on 11 April 2017 it dismissed her appeal and confirmed the Director’s decision.

11.In its decision the Board did not take any issue with the Applicant’s credibility and accepted her claim of being abused and threatened by her husband, but found on the basis of reliable COI that she would be protected from such domestic abuses from her husband by law and with assistance from government services and various NGO, and with state/police protection available if needed as well as reasonable internal relocation for the Applicant to move safely to other part of Indonesia away from her home district to re-establish her life and work without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.        

12.On 12 April 2017 the Director on his own initiative in writing invited the Applicant to submit any 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”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 4 May 2017 rejected the Applicant’s claim under BOR 2 risk.

13.On 29 May 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, but as the last day for she to do so within the 14-day period required by section 37ZS(1) of the Ordinance to file the notice of appeal fell on 20 May 2017, the Applicant was therefore late with the filing of her appeal, whereupon the Board proceeded to determine, as a preliminary decision without a hearing, whether to allow the late filing of the Applicant’s notice of appeal under section 37ZT of the Ordinance.  

14.By a written notice dated 27 March 2018 the Board refused to allow the Applicant’s late filing of her notice of appeal upon finding that she was 8 days late with her application for which she failed to provide any statement of reason for her late filing or any documentary evidence in support as stipulated by section 37ZT(1) of the Ordinance, and that in the absence of any additional facts or representation from her which may be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk, it was not satisfied that by reason of any special circumstances which would make it unjust not to allow the late filing of her notice of appeal, and therefore refused her application for time extension.      

15.On 11 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decisions, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the decisions of the Director and the Board but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 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 in their decisions 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.

17.In the Applicant’s case, clearly on the facts of her claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, as correctly found by the Board that the Applicant has not identified what additional facts or grounds that she would have put before the Board at an oral hearing or otherwise that could advance her case under the BOR 2 risk ground.    

18.Furthermore, the fact is that it has been established by both the Director and the Board in their earlier 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

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 12^th day of August 2020. 

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