Nurina-agustin Alias Agustin Nurina Alias Nurina Agustin v. Torture Claims Appeal Board

HCAL 1499/2018

[2021] HKCFI 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1499 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 43-year-old national of Indonesia who last arrived in Hong Kong on 21 April 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 April 2017 or within 14 days of its early termination, but when her contract was prematurely terminated on 21 August 2015, she did not depart and instead overstayed in Hong Kong, and on 15 December 2015 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 former husband for refusing to resume their relationship and/or by his creditors for failure to repay his loans. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cilacap, Central Java, Indonesia. After leaving school she went to work as a domestic helper in Singapore before returning home to Indonesia to marry her husband in 2003 and gave birth to a child.

3.In 2005 she moved with her husband to Jakarta where she worked as a saleslady while her husband made his living as a taxi driver, but he soon started to indulge in drinking and womanizing and frequently demanded money from the Applicant, and when she refused, he would become abusive and violent towards her.

4.To avoid such abuses, the Applicant in 2007 departed for Singapore to resume her job as a domestic helper before coming to Hong Kong in 2010 to work as a foreign domestic helper, and in 2012 she instructed a lawyer in Indonesia to obtain a divorce from her husband.

5.However, in 2014 she heard from her mother in Indonesia that her former husband had got into debts and that his creditors had come to her home to demand that the Applicant as his former wife to repay his loans, and threatened to harm her if she refused to do so when she returned to Indonesia.      

6.The Applicant remained in Hong Kong to continue with her employment, but when her last employment contract was terminated in August 2015, and as she was fearful of her former husband’s creditors in Indonesia, she therefore overstayed in Hong Kong, and when she was later told by her mother that her former husband was looking for her for reconciliation and threatened to kill her if she refused, she therefore surrendered to the Immigration Department on 15 December 2015 for non-refoulement protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.By a Notice of Decision dated 27 December 2017 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 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”).

8.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 she would be harmed or killed by her former husband or his creditors upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real threats made by her former husband or his creditors to the Applicant other than hearsays, that in any event her problems with them were private domestic or monetary 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 261 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 her former husband or his creditors to locate her.

9.On 4 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 15 May 2018 before the Board when she gave evidence and answered questions put to her by the Adjudicator for the Board during which she confirmed that she only relies on her fear of harm from her former husband but not from his creditors as the basis for her claim and appeal. On 13 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted that the Applicant may have been abused by her former husband in the past during their marriage, but found no reliable evidence that he would still have any further adverse interest in her since their divorce in 2012, and that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia that it was not satisfied that there are substantial grounds for believing that there is a real risk that she would be harmed by her former husband after all these years since their divorce or that she would not obtain police protection that her non-refoulement claim failed on all applicable grounds.    

11.On 30 July 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 stated that the Board failed to take into account of the following matters when dismissing her appeal:

(1) that the Applicant was not educated;

(2) that in the absence of proof for her case, the Board cannot infer that the Applicant has no case; and

(3) that the decision was made under assumption.  

12.These are however all just broad, vague or irrelevant assertions of the Applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision made on assumption. It is clear that the only issue before the Board, as rightly pointed out by the Adjudicator, was whether there are substantial grounds for believing that the Applicant would be in danger of harm from her former husband upon her return to Indonesia, and that the burden of proof rests on the Applicant to prove that there are: Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para. 51.

13.Given the basis even on her own case and the evidence adduced at her appeal hearing before the Board, and in applying high standards of fairness the Adjudicator did properly examine those evidence as well as all other materials before the Board including the relevant COI on the availability of state/police protection before arriving at the conclusion, which the Adjudicator was entitled to in the circumstances, that there are no substantial grounds for believing that the Indonesian authorities would not provide protection to the Applicant or would fail to prevent such risk of harm from her former husband to her upon her return to Indonesia. 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 of the Applicant’s complaints reasonably arguable for her intended challenge.    

14.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.

15.In the Applicant’s case, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.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 irrationality 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.

17.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 7^th day of May 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