Ambar Astutiyaningsih v. Director of Immigration and Another

HCAL 838/2019

[2023] HKCFI 596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 838 OF 2019

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DECISION

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A.  Introduction

1.By a Form 86 filed on 26 March 2019, the Applicant applies for leave for judicial review to challenge:

(1)  the Director’s decision dated 24 September 2018 (“Director’s Decision”) rejecting her non-refoulement claim (“NRC”) on all the four applicable grounds, namely Torture Risk, CIDTP Risk, BOR2 Risk and Persecution Risk; and

(2)  the decision dated 4 February 2019 (“Board Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dismissing her appeal/petition against the Director’s Decision.

2.Some procedural background might be added to explain why it had taken so long – almost 4 years – for the application to come to be heard today.

3.In her Form 86, the Applicant requested an oral hearing. On 1 April 2019, Chow J (as Chow JA then was) directed an inter partes oral hearing with 2 hours reserved, on date to be fixed by the parties.

4.However, since that date, the application lay dormant for a long time, because the Applicant did not fix a date for the hearing or take other steps to pursue her application. That was so, notwithstanding that (1) the Director issued a letter to the Applicant on 21 June 2019 inviting her to fix a date, and (2) the Applicant was released from immigration detention on recognizance as from 3 July 2019.

5.The application only resurfaced in late 2022, when the Court received a letter from the Applicant asking whether her case was still “open or not”. By that time, the Applicant had been taken back into immigration detention on 22 September 2022, upon her discharge from a prison term imposed following her conviction on 6 January 2022 of an offence of illegal employment contrary to section 38AA of the Immigration Ordinance.

6.The Director responded by a letter dated 30 December 2022, issued on its behalf by the Department of Justice, inviting the Court simply to refuse the leave application. The Director also drew the Court’s attention to that fact that the Applicant had been held under immigration detention for the then last two months pending her removal from Hong Kong, and thus invited the Court to accord priority to the application.

7.Despite the substantial delay and the Applicant’s failure to prosecute her case, I decided that it would be appropriate to honour the previous directions given by the Court. Thus, I gave directions to bring this application to today’s hearing.

8.As usual, the Board has indicated that it would take a neutral stand and its attendance at the hearing has been excused. The Director was represented by Mr Andrew Tong, Senior Government Counsel (Ag). The Applicant has appeared in person with the benefit of an Indonesian/English interpreter. However, she made no submissions in support of her application nor in reply to the few points made orally by Mr Tong.

9.This is my Decision.

B.  The Applicant’s NRC

10.The Applicant is an Indonesian Applicant. She was born in 1977. She first came to Hong Kong as a foreign domestic helper (“FDH”) in 2014. In May 2017, her FDH contract was terminated prematurely. She was permitted to stay in Hong Kong as a visitor until 25 July 2017. Ever since then, she has been overstaying in Hong Kong. She raised a NRC in 2018.

11.Her claim is based on the domestic violence inflicted on her by her husband. She was married to the husband in 1993 and gave birth to two children in 1994 and 2004 respectively. The domestic abuse started shortly after the wedding. She recalled 5 instances of physical abuse in the years 1994, 2003, 2005, 2010 and 2013 respectively. She eventually decided to leave her husband and came to Hong Kong as a FDH in 2014.

12.She once had a relationship with another man, known as Andi, in about 2016. Though the Applicant returned to Indonesia without incident in 2017, the relationship was eventually found out by her husband who threatened to kill her. After her FDH contract was terminated prematurely, she decided to overstay in Hong Kong because she was afraid to return to Indonesia.

C.  The Board Decision

13.The Applicant’s NRC was rejected by the Director in 2018. Her appeal/petition was heard by the Board on 14 January 2019. The Applicant testified with the assistance of an Indian/English interpreter at the Board hearing. By decision dated 4 February 2019, the Board rejected her appeal/petition.

14.Basically, the Board accepted the Applicant’s factual account as to the physical abuse she said her husband had inflicted on her and the claimed injury suffered by her from that abuse. The Board found that:

(1)  The Applicant was a reliable witness, despite the vague nature of some of her evidence. She gave her evidence in a direct and sincere manner, and was a mostly responsive witness. She gave no impression that she was willing to embellish or exaggerate her claims when opportunities arose: see §32.

(2)  It was accepted that the Applicant was subject to domestic violence from her husband on a number of occasions during their marriage from 1994 to 2013. She did not suffer any injury during any of the assaults apart from having her nose bleed on one occasion and having some minor bruising and swelling on other occasions: see §§36.

(3)  She had a brief relationship with Andi in Hong Kong in 2016. The husband came to know about that relationship, which caused her husband to become jealous, angry and abusive, and subsequently he threatened to harm or kill her if she were to return to Indonesia: see §§39-40.

15.The Board rejected her claim on all applicable grounds, as follows:

(1)  On Torture Risk, the claim failed to meet the requisite element that the torture has to be intentionally inflicted for one of the specified purposes with the involvement or the acquiescence of a public official. There was no state involvement or state acquiescence. The claimed risk came from her husband, a private individual. The COI shows that the police and legal system has committed itself to protect women from domestic abuse. The Board was also of the view that, based on the COI, the state would be able to offer state protection: see §§50-52.

(2)  For BOR3/CIDTP risk, the Board found that, based on the Applicant’s factual account, there is a small though nonetheless real risk that the Applicant would suffer serious physical mistreatment from her husband and that the type of mistreatment would properly constitute CIDTP. But the Board found that the Applicant was a relatively educated woman with work experience and a demonstrated ability to travel and live in a foreign country, and it would be reasonable for her to relocate to other large towns or cities in Indonesia where she would not be at risk of CIDTP: see §§63, 65.

(3)  For Persecution Risk, the claim failed because the claimed fear did not emanate from any of the reasons required by the Refugee Convention and was not inflicted by or acquiesced to by the state. Relocation was also available: see §§71-15.

(4)  For BOR2 Risk, the Board considered that neither the factual accounts nor the COI evidence revealed that the Applicant was at risk of being arbitrarily deprived of her life upon return: see §§77-78.

D.  Discussion

16.The Applicant was initially represented by a law firm when she filed the Form 86. The one-page “grounds on which relief is sought” attached to the Form 86 was apparently drafted with legal assistance.

17.The Form 86 identified both the Director’s Decision and the Board Decision as the target of challenge, and most of the grounds were made with reference to the Director or the Director’s Decision. Mr Tong submits (and I agree) that since the Applicant had invoked the established statutory procedure of appeal by appealing/petitioning to the Board, the Director’s Decision has already been superseded by the Board’s Decision and is no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKA 549.

18.As already stated, the Applicant chose to make no further submissions in support of her rather ‘thin’ application is made on paper. However, if solely for the Applicant’s benefit, and treating the Applicant’s complaint as directed at the Board Decision, a summary of what might amount to proposed grounds of review seems to be:

(1)  The Board Decision was unreasonable in the Wednesbury sense or was reached unfairly.

(2)  The Board failed to give proper weight or importance to the presence of state acquiescence. The Applicant was “tortured at the Behest and the state law enforcement agencies as well as those in the high ups of political circles”. The state should be held liable for failing to provide reasonable protection for it citizen under the duty of due diligence. The Board failed to give weight to COI evidence which would support the Applicant’s version that police in her country would not be able to protect her.

(3)  This is a clean case of unfair attitude. In fact, the corruption and incompetency of the administration in her country is still a very serious problem, as supported by reports compiled by various human rights organisations. The Board has failed to attain the high standard of fairness or was unreasonable in dealing with that argument put forward by the Applicant.

(4)  The Board had failed to give the Applicant sufficient time and chance to arrange relevant evidence for her case.

19.This application can be disposed of quickly. None of the stated grounds are reasonably arguable:

(1)  Except the points related to state acquiescence/state protection, there were no particulars or other submissions as would support a general allegation that the Board Decision was unreasonable in the Wednesbury sense. Having scrutinizing the Board Decision, bearing in mind this Court’s function in a judicial review, I have found nothing which would be said to be irrational in the public law sense. Nor is there anything to suggest unfairness.

(2)  The factual assertion that the Applicant was tortured at the behest of state law enforcement agencies and persons high up in the political circles was a new allegation not advanced before the Board below, and it is contrary to the actual basis of her NRC. This Court would not entertain a new factual allegation in the exercise of its judicial review function.

(3)  As I understand it, the Applicant was not claiming that the Board had made an error of fact or had failed to take into account any relevant facts. In any event, the Applicant had given no particulars as might suggest that she had claimed to have been tortured by state agents and somehow the Board ignored or failed to deal with such a claim.

(4)  The assertion that the Board had failed to give proper weight to COI or reports which would support her claim that police would be unable to protect her is devoid of particulars. She has not pointed to any particular COI which she says the Board had failed to take into account properly. Besides, the proper weight to be given to a particular piece of evidence is always a matter of discretion and the Applicant had shown no reasons why this Court should intervene in the Board’s assessment of COI evidence.

(5)  The assertion that the Board failed to deal reasonably and fairly with the argument that corruption and incompetency of administration was serious in her country is also doomed to fail. The reference to corruption is unintelligible without further particulars because there was no reference to corruption in the Board Decision. There are no particulars as might support that the Applicant had raised corruption but somehow the Board had failed to deal with it. Without further particulars, I can only read “incompetency of the administration” as referring to her claim that police would not be able to protect her, which I have already dealt with.

(6)  As to allegation that the Board had failed to give her sufficient time to prepare evidence, there is simply no indication as to what evidence she would like to but was not able to produce before the Board owing to time constraint. Nor was there any explanation as to how the failure to produced relevant evidence (even if it did occur) was the Board’s fault. I also note that the original dealing with the claim was extended to allow the Applicant to produce more materials, and she later confirmed that she had no further materials to provide.

E.  Conclusion

20.I would also note that the Court does not view favourably the Applicant’s delay and lack of diligence in pursuing this application. When seen in context with her conviction for illegal employment during the time that she was released on recognizance, there is more than a flavour that these proceedings were commenced simply to try to prevent removal from Hong Kong. But, as importantly, the grounds sought to be advanced raise no reasonably arguable case with any realistic prospect of success.

21.The application is dismissed.

22.As to costs, Mr Tong seeks an order for costs in favour of the Director. In the overall circumstances which include a real concern about the underlying motive for these meritless proceedings, and in the exercise of my discretion, it seems to me that this is a case where costs could and perhaps should be awarded to the Director. But, on the basis that the Applicant is currently held in immigration detention pending her removal from Hong Kong, I am just persuaded that the appropriate order is that there should be no order as to costs.

The applicant, acting in person

Mr Andrew Tong, Senior Government Counsel (Ag.), of the Department of Justice, for the 1^st putative respondent

The 2^nd putative respondent was excused from court attendance