Yuyun v. Torture Claims Appeal Board

HCAL 812/2020

[2020] HKCFI 2347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 812 of 2020

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:

The application for leave to apply for judicial review be struck out and dismissed.

Observations for the Applicant:

1.The Applicant is a national of Indonesia who was a foreign domestic helper under an employment contract in Hong Kong when she was arrested by police in late 2013 for burglary for which she was subsequently convicted and sentenced to prison for 12 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her husband and/or his creditors for failing to repay his loans.

2.The Applicant was born and raised in Banyuwangi, East java, Indonesia.  After leaving school she married her husband and raised two children.

3.In 1998 her husband borrowed several loans from different creditors in their home district, and to assist his repayment of his loans, the Applicant went to work as a foreign domestic helper first in Singapore and later in Hong Kong since 2006 by making monthly remittance to her husband in Indonesia to enable him to repay his loans, but later when she discovered that he had instead spent her remittances on something else, she ceased her monthly remittances, and when her husband and his creditors started to make threats against her, she therefore raised her non-refoulement claim for protection with the Immigration Department.        

4.By a Notice of Decision dated 17 October 2014 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 (“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”).

5.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 or his creditors upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that her problems with them were domestic or private 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 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 working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or his creditors to locate her.

6.On 30 October 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, of which the Board did not find it necessary to conduct any oral hearing as it did not take any issue with the credibility of her claim, and on 12 February 2016 dismissed her appeal and confirmed the Director’s decision upon finding that in the absence of any official involvement in her disputes with her husband or his creditors that state/police protection would be available to her upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of Indonesia away from her home district without any risk of being located by her husband or his creditors that her claim for non-refoulement protection failed on all the applicable grounds.

7.On 19 February 2016 the Applicant filed a Form 86 under HCAL 43/2016 for leave to apply for judicial review of both the decisions of the Director and the Board, but her application was refused by Hon Chung J on 5 December 2016 upon finding none of her proposed grounds reasonably arguable, that there was no error of law or procedural unfairness in her process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application. 

8.On 29 December 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, but in the absence of any response from her, the Director by a Notice of Further Decision dated 7 February 2017 again rejected her 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”).

9.The Applicant did not file any appeal to the Board against this Further Decision of the Director, but more than 3 years later on 4 May 2020 she filed another Form 86 for leave to apply for judicial review of the earlier decision dated 12 February 2016 of the Board again, but with no ground for seeking relief given in the Form, while in her supporting affirmation of the same date she merely repeated her claim that her life would be in danger in her home country and suggested that the immigration officer should tour her country to have a better understanding of the risk that she would face if she were to return to Indonesia without putting forward any proper grounds for her intended challenge.

10.Quite apart from the fact that she would be seriously out of time by more than      3 years, clearly the principle of res judicata applies to this second application of the Applicant, and it is an abuse of process for her to try to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from Hon Chung J under HCAL 43/2016, and also for failing to inform the registry of the same when she filed her second Form 86 and issued her ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.  

11.Furthermore, even if one were to assume that in fact she had intended to challenge the Director’s Further Decision regarding her BOR 2 claim instead of the Board’s earlier decision, the Applicant would be procedurally wrong to apply for judicial review without first bringing an appeal to the Board against that Further Decision as required by      Part VIIC of the Immigration Ordinance as part of the 2-tier enhanced screening process for non-refoulement claims under the Unified Screening Mechanism (“USM”) in place since March 2014, and it is only after her appeal has been disposed of by the Board that she may apply for judicial review of that decision of the Board.    

12.As such and for the reasons given, this second leave application for judicial review of the Board’s decision by the Applicant is hereby struck out and dismissed.

Dated the 22^nd day of September 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