Sundariati Yeri v. Torture Claims Appeal Board and Another

HCAL 1024/2018

[2020] HKCFI 2579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1024 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 (counsel for) the Applicant in open court / the Applicant being absent 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 51-year-old national of Indonesia who last arrived in Hong Kong on 2 August 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 14 November 2009 or within 14 days of its early termination, but when it was prematurely terminated on 1 February 2009, she did not depart and instead overstayed and was arrested by the Immigration Department on 30 August 2010 for breach of condition of stay and for undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 10 weeks, and upon her discharge and was referred to the Immigration Department for deportation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband and/or his creditor for failing to assist him in repaying his loan. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Trenggalek, East Java, Indonesia. After leaving school she married her farmer husband and raised a family of 2 sons who are now adults.

3.To help out with her family income, the Applicant in 2002 started to come to Hong Kong to work as a foreign domestic helper, and in 2007 after her husband had purchased a farm land with some loans and to assist him with his loans repayment, she would make monthly remittance to him from Hong Kong,  

4.However, when her last employment contract was terminated and she was therefore unable to remit any money to her husband, and when she started to receive threatening phone calls from her husband and his creditor, she 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 18 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

5.Whilst being released on recognizance pending the determination of her claim, the Applicant was again arrested by police on 1 January 2016 for undertaking unauthorized employment and for possessing an identity card of another person, for which she was subsequently convicted and sentenced to prison for 15 months.             

6.By a Notice of Decision dated 8 December 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”).

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 her perceived fear will be real and foreseeable upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there were serious inconsistencies in her account given in her NCF and screening interview that it is doubtful that her claim was genuine, that in any event that her problems with her husband or his creditor were private domestic or monetary 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 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 her husband or his creditor to locate her.

8.On 19 December 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 7 March 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 4 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence wholly unsatisfactory with considerable tendency to evade questions and to alter her evidence which became increasingly confused, incoherent and inconsistent that it is not satisfied that she has given truthful evidence about the alleged threats from her husband or his creditor, that in any event according to her that her husband has since 2008 remarried another woman and with little further contact with her that it is doubtful that after all these years that he or his creditor would still have any adverse interest in her that it concluded of no risk of any harm from anyone to the Applicant upon her return to Indonesia safely to be with her 2 adult sons that her claim for non-refoulement protection failed on all applicable grounds.   

10.On 5 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, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she did not put forward any proper grounds for her intended challenge, nor did she request any oral hearing for her application.  As such I do not find any reasonably arguable basis for her intended challenge.

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 thorough and detailed analysis and reasoning set out in paragraphs 40 – 51 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 arguable basis to challenge the finding of the Board.  

13.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.                

14.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.

15.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 26^th 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