Ani Nur Ainiah v. Torture Claims Appeal Board and Another

HCAL 784/2018

[2021] HKCFI 925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 784 of 2018

BETWEEN

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 35-year-old national of Indonesia who first arrived in Hong Kong on 16 May 2007 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 terminated on 20 February 2011, she did not depart and instead overstayed and was arrested by police on 4 April 2012. 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 father’s creditor over her father’s debt and/or by her family and the Muslim community for her homosexuality. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in a Muslim family in Tulungagung Jatim, Java Province, Indonesia where her father was disabled and her mother worked as a farmer to support the family. After leaving school the Applicant went to work as a house maid in Malang before coming to Hong Kong in 2007 to work as a foreign domestic helper.

3.While in Hong Kong she formed a lesbian relationship with a fellow Indonesian foreign domestic helper, but when she informed her parents about the same, they became very angry and rebuked her that it would not be tolerated or accepted by them or the Muslim community, and as a result the Applicant became apprehensive for her own safety.

4.One day in November 2009 she was informed by her father that her younger sister was injured in a traffic accident for which he had borrowed a loan from the local money-lender for her medical treatments, and that he wanted the Applicant to remit a big part of her monthly salary to him in Indonesia to assist with the loan repayments, and to which the Applicant agreed.

5.However, sometimes in 2010 she received phone calls from someone claimed to be her father’s creditor demanding her to increase her remittance to her father to enable him to repay his loan sooner, and threatened to kill her if she failed to do so. Upon subsequently learning from her father that he was the one who gave her phone number to his creditor, the Applicant became upset and thereafter changed her phone number to avoid the creditor and to stop contacting her parents, and when her last employment contract was terminated in February 2011, and as she was afraid to return to Indonesia due to the threats from her parents and her father’s creditor, she therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 November 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 26 June 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 assessed the level of risk of harm from her father’s creditor or her family or the Muslim community upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no real intension of her family to harm or kill her over her homosexuality or any evidence of any threats from the Muslim community or of her father’s creditor to harm her who had never even met her, that they were private or family 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 253 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 where it would be difficult if not impossible for her perceived enemies to locate her.

8.By a Notice of Further Decision dated 1 November 2016 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 and 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 (“Board”) against the earlier decision of the Director, with the notice of appeal filed on 10 July 2015, but for which she failed to attend the oral hearing scheduled on 28 December 2016 for her appeal without any explanation, and that the Board proceeded to deal with her appeal in her absence and on paper. On 28 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found on the basis of the materials previously provided by the Applicant and in the absence of any oral evidence from her to clarify explain or establish her claim due to her failure to attend her appeal hearing that it doubted her claim of her alleged sexual orientation or of her fear of harm from her parents or the Muslim community or her father’s creditor upon her return to Indonesia, and that in any event in the absence of any official involvement that state/police protection would be available to her if needed 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 that her claim for non-refoulement protection failed on all applicable grounds.  

11.On 4 May 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 repeated her claim of fear of harm from her father’s creditor or the Muslim community over her alleged homosexuality but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

12.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.

13.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.     

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 8^th day of April 2021.

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