Iswinarmi v. Torture Claims Appeal Board

HCAL 1772/2019

[2022] HKCFI 3112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1772 of 2019

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 51-year-old national of Indonesia who had worked in Hong Kong since 2000 as a foreign domestic helper, but after her last employment was prematurely terminated on 12 August 2008, and when she was unable to find further employment, she failed to leave and instead overstayed in Hong Kong, and after she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her family for marrying a Christian for her husband and for converting her religion from Islam to Christianity, and after it was rejected he then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Kediri, Jawa Timur, Indonesia. After leaving school she in 1996 married her husband who was a Christian despite objection from her family, and after a fight with her parents who threatened to disown her, she moved with her husband to his home district in Surabaya City where they raised a family with a son.

3.In 1998 she left Indonesia to work in Malaysia as a domestic helper before coming to Hong Kong in 2000 to work as a foreign domestic helper, and later when her husband died in a traffic accident in Indonesia, her parents took her son into their care, but the Applicant remained without any further contact with them.

4.Later during her stay in Hong Kong, the Applicant became attracted to the religion of Christianity, and was eventually baptized to become a Christian, but when her last employment was terminated in August 2008, she was afraid to return to Indonesia for fear of being harmed or killed by her family over her former marriage to a Christian and her subsequent conversion to Christianity, and so she overstayed in Hong Kong and raised her torture claim with the Immigration Department, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 13 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 17 April 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her family upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her family to seriously harm or kill her over her religion conversion especially after all these years since she left the country and without any further contact between each other that it is not accepted that there would still be any adverse interest in her, that in any event it was a private family dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Indonesia, 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 260 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her family to locate her.

7.On 23 April 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 3 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 April 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her family over her conversion of her religion from Islam to Christianity but found that it was a private family dispute between her and her family without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

9.On 26 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her written submissions dated 6 June 2022 she put forward the following grounds for her intended challenge:

(1) That the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that they did not satisfy the requirement;

(2) That the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3) That the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated which led to groundless speculation that it is safe for the Applicant to return to her home country; and

(6) That the bundle of document for her appeal to the Board was provided to her without giving her sufficient time to prepare for her appeal hearing before the Board which led to an unfair hearing that despite having answered all the questions honestly that her credibility was found questionable which was the result of a lack of care of the Board to make appropriate arrangements in relation to the hearing bundle.

10.These are however all 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 are to apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or which source of news relied on by the Board were not officially recognized or were hearsay or outdated, or in what way did the Board make groundless speculation about internal relocation for her to safely return to her home country. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

11.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.

12.As for her complaint over the provision of the hearing bundle for her appeal before the Board, even if it is true that the hearing bundle was indeed provided 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 SCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF 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, nor do I find this ground reasonably arguable either.

13.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective 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.

14.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.

15.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 7^th day of October 2022.

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