Lapanati Yulas v. Torture Claims Appeal Board

HCAL 1959/2018

[2020] HKCFI 2451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1959 of 2018

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 38-year-old national of Indonesia who first came to Hong Kong in 2005 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment contract was prematurely terminated on 23 November 2013, she did not depart and instead overstayed, and on 12 December 2013 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her Muslim parents and the local Muslim villagers for converting her religion from Islam to Christianity and/or by her abusive husband for leaving him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in an Islamic village in Desa Ngadrum Kecamatan Binangun, Kabupaten Blitar, Provinsi Jawa Timur, Indonesia into a family of Muslims and was raised as one.

3.In 1995 she went to work in Riau, Sumatera where she met and eventually married her husband who was a Christian, and upon her marriage she also converted her religion from Islam to Christianity, but when her parents heard about it, they became furious and that her father on two occasions came to remonstrate her, and eventually they disowned her and threatened that they and their fellow villagers would kill her if they were to see her again.

4.In 2003 her husband lost his business, and was therefore in financial difficulties and became abusive towards her whenever he lost his temper over his business loss. By 2005 she found the abuses unbearable, and decided to leave her husband by applying to work in Hong Kong as a foreign domestic helper, but when her last employment contract was terminated in November 2013, and when she was unable to find another employment, and as she was afraid to return to Indonesia due to her fear of harm from her parents, the local villagers or her husband, she therefore overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 24 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.             

5.By a Notice of Decision dated 29 December 2017 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”).

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 parents or the villagers or her abusive husband upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that any of them would still have any adverse interest in her, that her problems with them were all private family or domestic disputes 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 260 million people spread across a vast territory of more than 1.8 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 Indonesia away from her home district in large cities such as Sukabumi where it would be difficult if not impossible for her parents or villagers or husband to locate her.

7.On 11 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which she attended an oral hearing on 4 June 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 12 September 2018 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 having disputes with her parents over her conversion into Christianity and with her husband over his abusive behavior, but doubted her claim of fear of harm from them after having left them for so many years, and that in the absence of any evidence of any official involvement that state/police protection would be available upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her parents or her husband that her claim for non-refoulement protection failed on all applicable grounds.    

9.On 18 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the decision of the Board, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she merely repeated her claim that her life would be in danger in her home country without putting forward any proper ground for her intended challenge, nor did she do so at the hearing of her application. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably basis for her intended challenge.

10.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.

11.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 her 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.                

12.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.

13.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 12th day of November 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