Tri-nuriyati v. Torture Claims Appeal Board

HCAL 1547/2018

[2021] HKCFI 1169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1547 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 36-year-old national of Indonesia who arrived in Hong Kong on 30 August 2013 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 employment contract was terminated on 23 November 2014 after she was arrested by police for soliciting for an immoral purpose for which she was subsequently convicted and sentenced to prison for 6 weeks, and upon her discharge and was referred to the Immigration Department for deportation, 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 for his failure to repay his loan. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born in Jaya Pura, Irian Jaya, Indonesia but raised in Village Duwet. Sub-district Baki, Sukoharjo Regency, Central Java.

3.In early 2009 her father borrowed a loan from a local money-lender for his furniture business, but in August of the same year her father ran away from home after getting involved in some corruption case and had since disappeared, as a result his creditor started to send men to threaten and harass the Applicant’s family with demands for the Applicant and her family to repay the loan for her father.

4.To avoid such threats and harassments, the Applicant departed Indonesia in December  2009 to work as a domestic helper in Taiwan until December 2012 when she returned to Indonesia, but when she heard that her father’s creditor was still threatening her family, she therefore departed Indonesia again in August 2013 for Hong Kong to work as a foreign domestic helper, but in November 2014 she was arrested by police for breach of her conditions of stay for which she was subsequently convicted and sentenced to prison for 6 weeks, and after her discharge and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 September 2015 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 26 October 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”).

6.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 father’s creditor upon the Applicant’s return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from the creditor, that it was a private monetary dispute between her father and his creditor with nothing to do with her and 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 253 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 parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her father’s creditor to locate her.

7.By a Notice of Further Decision dated 27 June 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”).

8.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, the notice of which was filed on 4 November 2015, and for which she attended an oral hearing on 10 July 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 30 July 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board accepted the Applicant’s claim of threats from her father’s creditor over his loan but found no evidence of serious harm being inflicted on her, that it was a private dispute between her father and his creditor without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by her father’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.On 3 August 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the decision and other documents from her hearing bundle for her appeal before the Board together with a statement headed “Analysing the refusal letter” in which she however did not do so and instead just referred to some English cases which were wholly irrelevant to her own case either on the facts or law, nor did she put forward any proper ground for her intended challenge or 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.

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.Furthermore, 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 parts 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.     

13.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.

14.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 28^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