Anita Julia v. Torture Claims Appeal Board and Another

HCAL 457/2018

[2020] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 457 of 2018

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 32-year-old national of Indonesia who last arrived in Hong Kong on 1 August 2014 with permission to remain as a visitor up to 31 August 2014 when she did not depart and instead overstayed and was arrested by police on 27 July 2015 for theft for which she was subsequently given a suspended sentence.  She then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a local loan shark for failing to repay her father’s loan.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Ringgin Branjang, Dusun Maliran Region, Ponggok Sub-District, Blitar District, East Java Province, Indonesia.  After leaving school she worked as a baby-sitter before going to work in Singapore between 2009 and 2011 as a domestic helper to support her family as her father was an odd job worker with limited income.

3.In 2012 her grandmother had an accident and required an operation, for which her father borrowed a loan from the local loan shark at a 50% monthly interest payment until full payment of the loan.

4.Due to the high interest rate her father soon started to have difficulty paying the monthly interest, and the loan shark would come to his house to threaten the family, and when he found out that the Applicant was the main bread winner of the family, he demanded that she should repay the loan for her father or else she would be killed.

5.As a result the Applicant borrowed some money from a neighbor to make a partial repayment, but the loan shark was not satisfied and on one occasion he pushed her violently and beat her father before warning her that unless she would pay off the loan soon, she would be killed.

6.Fearing for her life, the Applicant therefore fled to Blitar where she applied to work in Hong Kong as a foreign domestic helper, and for which she departed on 30 June 2013 for Hong Kong to start her employment contract, and when her contract was prematurely terminated on 12 April 2014, she departed for Mainland China on 25 April 2014, returning to Hong Kong a month later as a visitor, but when she subsequently overstayed and was eventually arrested, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 7 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.While being released on recognizance pending the determination of her claim, the Applicant was arrested by police again for possession of an identity card of another person and for undertaking authorized employment for which she was subsequently convicted and sentenced to prison for 12 months and 1 week.        

8.By a Notice of Decision dated 15 November 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 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”).

9.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 the loan shark upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention on the part of the loan shark to harm or kill her other than to put pressure on her to repay her father’s loan, that in any event it was a private monetary dispute between her father and the loan shark 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 255 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 the loan shark to locate her.

10.On 22 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 21 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 29 December 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board accepted the Applicant’s claim of being threatened by the local loan shark over repayment of her father’s loan, but found it not unreasonable for her to relocate elsewhere in Indonesia away from her home village to avoid any further threats or harm from the loan shark, and that with her working experience she would be able to re-establish herself in some large cities in Indonesia without any risk of being located by the loan shark that her claim for non-refoulement protection in Hong Kong failed on all applicable grounds.    

12.On 20 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely exhibited copies of those decisions without putting forward any ground or reason for her intended challenge.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably basis to challenge the findings of the Director or the Board.    

13.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 or her 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.

14.In the Applicant’s case, the fact is that it has been 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.     

15.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.

16.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 23^rd day of July 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