Isminarti v. Torture Claims Appeal Board

HCAL 3315/2019

[2024] HKCFI 876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3315 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 be refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 28 November 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 November 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 23 February 2019, she did not depart and instead overstayed, and on 18 March 2019 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband due to their marital disputes.  

2.The Applicant was born and raised in Village Karanganyar, District Malang, Eastern Java, Indonesia.  After leaving school she married her husband and raised a family with 2 children in her home district.

3.To help out with her family’s finance, the Applicant in 2007 went to work in Singapore as a domestic servant, and in 2010 she started to come to Hong Kong to work as a foreign domestic helper, returning to her home in Indonesia only in between her employment contracts and for holidays.

4.In about late 2015 or early 2016 when she returned to Indonesia waiting for her next employment contract in Hong Kong, the Applicant became suspicious of her husband having an affair with another woman which led to frequent quarrels between them during which her husband would become abusive by pushing and slapping her around, and after 2 occasions when he turned violent by kicking her forcefully injuring her legs in one incident, and in the second incident when he tried to attack her with a knife but she managed to flee from their home to take shelter in her brother’s place in the same village before eventually returning to Hong Kong to start her new employment.

5.Upon returning to Hong Kong, the Applicant later in 2016 formed a relationship with a man in Hong Kong, and when it was later discovered by her husband in 2018 from one of her friends who also worked as a foreign domestic helper in Hong Kong, he threatened the Applicant on the phone that he would kill her when she returned to Indonesia, and so when her last employment was terminated 23 February 2019, the Applicant 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 (“NCF”) on 3 July 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 17 July 2019 the Director of Immigration (“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 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her, that in any event these were private domestic disputes between the 2 of them 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 262 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 areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

8.On 25 July 2019 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 8 October 2019 before the Board but which was terminated shortly after the Adjudicator found no point in continuing with the hearing as the Applicant was not able to recall evidence that were important to her case, and proceeded to deal with the appeal on the basis of her previously adduced evidence to the Director as contained in the hearing bundle, and on 24 October 2019 the Board dismissed her appeal and confirmed the Director’s decision.

9.In its decision the Board was not satisfied that the harm which the Applicant claimed to fear as serious, that she took conflicting stances in relation to important details regarding her claim, that her evidence given in her original application and during her screening interview before the Director were vague, fluid and general, and at her appeal hearing when she was given the opportunity to clarify and expand on matters that she fluctuated between being certain and unsure and claiming that she was unable to recall anything at all that the Board doubted the credibility of her claim of fear of harm from her husband upon her return to Indonesia, and that in any event even if such risk were real that it was a private marital dispute between her and her husband only 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 alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 6 November 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date, nor was she able to do so at the hearing of her application.  As such the Applicant has failed to put forth any proper ground for her intended challenge of the Board’s decision.     

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.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the reasons set out in paragraphs 40 – 45 of its decision, when the Adjudicator as noted above terminated the hearing after finding that there was no point in continuing with it because the Applicant was unable to recall evidence that was important to her claim, but for reasons which would be apparent below, it is relevant to set out what exactly happened at the hearing as recorded by the Board in the decision as follows:

“8. The Board held a Hearing of the Appellant’s appeal/petition on 8 October 2019.

9. The procedure was explained to the Appellant through the Indonesian Interpreter. She said that she understood the procedure.

10. The Appellant was asked if she knew about the burden of proof. She told the Board that she understood that it was for her to prove her claim.

11. The Appellant told the Board that when the Hearing Bundle was served on her, the contents had been read and explained to her.

12. The Appellant told the Board that she confirmed the truth and accuracy of the evidence that was contained in the Hearing Bundle.

13. the Board then informed her that she would be allowed to adopt her evidence in the Bundle as part of her evidence to the Board. An example was given as illustration. She was told that the Board would still have to ask questions for clarification or to obtain further information about her claim. The Appellant indicated that she understood the procedure.

14. The Board then proceeded to ask questions about the Appellant’s claim.

15. The Board began by seeking clarification on the dates when Incident 1, Incident 2 and Incident 3 had happened.

16. The Board told the Appellant that it wanted clarification on the dates of her domestic helper employment contracts, as the information given in Bundle page 78 under Answer to Q67 was too vague. The Board had asked the Immigration Department for the exact dates of the Appellant’s employment contracts in Hong Kong. The information given to the Board by the Immigration department was shown to the Appellant in a document (“the document”). The Interpreter was instructed to read and explain the contents of the document to the Appellant.

17. The Board informed the Appellant that the following dates were obtained from the Immigration Department. These related to the information in Bundle page 78. The Appellant was told that the dates provided by the Immigration Department were records of her employment contracts in Hong Kong. The Appellant was asked if she could confirm the dates.

Shatin	17 June 2014 – 13 July 2015
Tin Shui Wai	18 October 2015 – 18 October 2017
Mei Foo	13 October 2017 – 20 January 2018
Lai Chi Kok	23 April 2018 – 14 November 2018
Cheung Sha Wan	28 November 2018 – 26 February 2019

18.  The Appellant told the Board “I think they are all correct.”

19. The Board asked the Appellant if she could be sure that the employment dates were all correct.

20.  The Appellant told the Board “I am sure they are all correct.  No. I cannot remember.”

21. The Board advised the Appellant to take her time and have a quiet think about the dates written on the document.

22. After a few minutes, the Appellant told the Board “I believe in these dates.  But where was the employment?”

23.  The Interpreter was instructed to translate the contents of the document again.  After that was done, the Appellant told the Board “I cannot remember.”

24. At that stage, the Board decided not to continue with the Hearing.

25.  The Appellant was told that there was no point in continuing with the Hearing because she was telling the Board very clearly that she was not able to recall evidence that was important to her claim, even with a document to assist her memory.  The Board had given the Appellant a fair opportunity to present her case.”

13.Firstly, taking on that last remark of the Board, and based on what have been recorded above, it is in fact in my view reasonably arguable that the Board had actually failed to give the Applicant a fair opportunity to present her case at all.

14.Secondly, it also seems to me irrational or Wednesbury unreasonable for the Board to find that the Applicant “was not able to recall evidence that was important to her claim” when she did already state, no fewer than 3 times, that she thought or believed that those dates of her employments as listed in the document were correct.  What more did the Adjudicator want? If those answers of the Applicant did not somehow support or even contradict the core of her claim of being beaten or threatened by her husband while she was in Indonesia, then it was incumbent on the Adjudicator to put it to her and to invite her to reply or respond, as it is the duty as a decision maker to do so in the determination of claims of this nature.      

15.Which brings me to the more important issue: Even if the Applicant were indeed not able to recall those dates of her employments in Hong Kong, there seems to me no basis for the Adjudicator to conclude therefore there was no point to continue with the hearing, as she had yet to go to the core of her claim of fear of harm from her husband later in 2018 over her affair with another man in Hong Kong.

16.The Adjudicator never explained in the decision why those dates of the Applicant’s employments in Hong Kong would be so important to her claim which was based on her fear of being killed by her husband made in an overseas call in 2018 during her employment in Hong Kong over her extra-marital affair with another man, or that even if indeed the Applicant’s evidence as to the dates of those incidents of her being beaten by her husband while she was in Indonesia did not correspond with the dates of her employments in Hong Kong, why should it undermine the credibility of her claim of fear of threats made some 2 years later in 2018 over her extra-marital affair? The Board never explained or adequately so in the decision.

17.Indeed, had the Adjudicator for those reasons concluded the Applicant’s claim to be not credible and there and then proceeded to dismiss her appeal/petition, it would in my view certainly be reasonably arguable by the Applicant that it was procedurally unfair for the Board to so terminate the hearing under the circumstances, or that the Board had failed to apply high standards of fairness in its determination of her claim.            

18.The fact is that the Board did however proceed to correctly assess that if the Applicant’s claimed risk were real that it arose from a private marital dispute between her and her husband without any official involvement that state or police protection would be available to her upon her return to Indonesia, and that the Board did also correctly establish, as did by the Director, that such risk if real would be a localized one and that it would not be unreasonable or unsafe for the Applicant to relocate to other part of the country that I agree there would be no justification to afford the Applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

19.As such, any argument by the Applicant of procedural unfairness in the Board’s terminating her appeal hearing would not in my view assist or advance her case at the end, nor would it meet the threshold for leave to be granted for her to apply for judicial review of the Board’s decision as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

20.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and therefore refuse to grant leave and accordingly dismiss her leave application.

Dated the 26^th day of March 2024

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