Rini Sartini v. The Adjudicator of the Non-refoulement Claims Petition Office Appointed To Determine the Applicant’s Petition and Another

HCAL 991/2018

[2019] HKCFI 2421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 991 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 33-year-old national of Indonesia who last arrived in Hong Kong on 22 May 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 February 2013 or within two weeks of its early termination. On 2 September 2012 her contract was prematurely terminated, but she did not depart and instead overstayed until 1 November 2012 when she was arrested by police.  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 husband over a monetary dispute.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kel Kutawaru, Central Cilacap, Central Java,Indonesia. After leaving school she worked as a foreign domestic helper in Singapore and Malaysia, and in 2004 married her husband who worked as a truck driver, and raised a family with a son.

3.In order to earn more income for the family, the Applicant in 2008 started to work as a foreign domestic helper in Hong Kong, and would remit part of her monthly salary to her parents in Indonesia for her family’s expenses.

4.In about 2011 she received a telephone call from her husband in Indonesia informing her that he had borrowed a loan from a loan shark, and demanded her to make monthly remittance to him to help him with his loan repayment, which she subsequently did every month, but when her employment contract was prematurely terminated in September 2012,and without any income she was therefore unable to make any further remittance to her husband, who then became furious and threatened on the phone to kill her when she returned to Indonesia.

5.As a result of her husband’s threats, the Applicant was afraid to return to Indonesia, and instead she overstayed in Hong Kong, and upon her arrest she raised her non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 30 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 11 August 2016 the Director of Immigration (“the 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 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 absence or low intensity and frequency of past ill-treatment from her husband other than just verbal threats and demands for money, that her problem with her husband 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 work 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 to locate her.

8.By a Notice of Further Decision dated 31 May 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit 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”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 18 August 2016, but for which she did not attend the oral hearing scheduled for 23 February 2018 before the Board, and when she failed to respond to a subsequent request from the Board to explain for her absence at the scheduled hearing, the Board proceeded to deal with her appeal in her absence and on papers.  On 12 April 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found problems and inconsistencies in the Applicant’s claim of fear of harm from her husband over their monetary dispute that it was not accepted that she will face a real risk of harm from her husband upon her return to Indonesia, and that in any event that state protection would be available to the Applicant that her claim for non-refoulement protection failed on all applicable grounds.  

11.On 1 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1) that the Director failed to appreciate or give proper weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(2) that the Director failed to take into account or to give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies for which the state would be rendered liable to the Applicant for failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director failed to consider or give sufficient weight to the relevant COI that support the Applicant’s case that the police in her country would not be able to protect and instead ruled otherwise;

(4) that the Director relied on relevant COI which suited his pre-conceived conclusion thereby showing unfair attitude which would render his decision void;

(5) that the Director failed to consider the fact that the corruption and incompetency of the administration in the Applicant’s home country which supported the Applicant’s case;

(6) that the Director failed to attain high standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the decision;and

(8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to support her non-refoulement claim as well as her appeal.  

12.These are however all just broad and vague assertions of the Applicant containing various key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decision,or what relevancy was the presence of state acquiescence to her case, or in what way did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to make proper or sufficient inquiry or to apply high standards of fairness in their consideration of her claim, or in what way did the adjudicator fail to give her sufficient opportunity to provide relevant evidence to support her claim.

13.None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and there is nothing to suggest that she had ever been denied any opportunity to present her evidence before the Board when she herself failed to attend the scheduled oral hearing and later also failed to respond to the Board’s request for explanation for her non-attendance of her appeal hearing, and that she never raised any such issue in her appeal nor made any request for time to provide any further evidence in support her claim. Even now in her present application or at the hearing before me, she did not provide any further evidence for her claim, nor did she ask for further time to enable her to do so.  As such there is simply no basis or merits in these complaints of the Applicant, nor do I find any of them reasonably arguable for her intended challenge. 

14.As has been repeatedly emphasized by the Court of Appeal, 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.

15.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility as to her claimed fear of harm from her husband for the thorough and detailed analysis and reasoning set out in paragraphs 20 – 42 of its decision, and in the absence of any error of law or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by eth Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

16.Furthermore, the fact is that it has been established by the Director in his 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.

17.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.

18.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 22^nd day of November 2019.

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