Intan-dwi-nopitasari v. Torture Claims Appeal Board

HCAL 954/2021

[2021] HKCFI 2794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 954 of 2021

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 34-year-old national of Indonesia who last arrived in Hong Kong on 2 September 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 September 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 January 2015, she did not depart and instead overstayed and was arrested by police on 13 April 2015 for the offences of soliciting for immoral purpose and breach of conditions of stay for which she was subsequently convicted and sentenced to prison for 2 months, during which she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts, but after it had been rejected, and whilst being released on recognizance, she formed a relationship with a Bangladeshi man who was also an asylum seeker in Hong Kong, out of which she later gave birth to their daughter in 2018 and for whom she then made a non-refoulement claim as well as a subsequent claim for herself on the same basis as before and also for fear of being harmed by her former boyfriend from Indonesia and of discrimination by her local community due to her daughter being an illegitimate child if refouled to Indonesia.   

2.The Applicant was born and raised in Kertosari, Geger, Madium, East Java, Indonesia.  After leaving school she worked as a baby-sitter in her home district before moving to Singapore to work as a domestic helper for two years.

3.In 2012 she returned to Indonesia and applied to work as a foreign domestic helper in Hong Kong, and in 2014 she borrowed a loan from a money-lender to pay for her employment agency fees and for her siblings’ education to be repaid within 4 years by monthly instalments together with interests before travelling to Hong Kong for her employment contract in September 2014.

4.On 16 January 2015 her employment was prematurely terminated, but the Applicant did not depart Hong Kong as she was without any income to make her loan repayment, and for which she had been threatened by her creditor that she would be killed if returned to Indonesia.

5.After she was arrested by police on 13 April 2015 for the offence of soliciting for immoral purpose and breaching condition of stay for which she was subsequently convicted and sentenced to prison for 2 months, she then raised a non-refoulement claim on the basis that she would be harmed or killed by her creditor upon her return to Indonesia, which claim was rejected by the Director of Immigration (“Director”) on 23 May 2017, while her appeal was subsequently also dismissed by the Torture Claims Appeal Board (“Board”). 

6.Upon her discharge from prison and whilst being released on recognizance pending the determination of her claim, the Applicant formed a relationship with a Bangladeshi man who was himself also an asylum seeker in Hong Kong, and in early 2017 she became pregnant with their child, but later in the same year the Applicant was arrested by police for drug trafficking for which she was convicted on 31 October 2018 and sentenced to prison for 54 months.

7.Meanwhile earlier on 21 January 2018 the Applicant gave birth to her daughter, and for whom she also raised a similar claim based on fear of her creditor over her unpaid debts as before as well as risk of discrimination by the local community in Indonesia due to her daughter’s illegitimacy, and also a subsequent claim for herself due to fear of harm from her former boyfriend in Indonesia who had threatened to kill her over her relationship with the Bangladeshi man in Hong Kong, for which the Applicant completed a Non-refoulement Claim Form (“NCF”) on 2 January 2021 jointly for herself and her daughter and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).       

8.By a Notice of Decision dated 22 January 2021 the Director of Immigration (“Director”) rejected the claim of the Applicant and her daughter on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

9.In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her daughter and assessed their claimed level of risk of harm upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor or boyfriend or the local community, that there is no reliable evidence of any real intention of any of them harm the Applicant or her daughter, that such disputes are private monetary or personal matters without any official involvement that state or police protection would be available to the Applicant and her daughter if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are law and government agencies and NGOs to protect and offer support and assistances to unwed mother and illegitimate children available to the Applicant and her daughter upon their return to Indonesia as well as reasonable internal relocation alternatives within Indonesia with a large population of 267 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 safely move with her daughter 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 them to be located.

10.The Applicant then lodged an appeal for herself and her daughter to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 12 April 2021 before the Board with their lawyer from DLS during which the Applicant gave evidence and answered questions raised of their claim by the Adjudicator for the Board.  On 9 June 2021 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence and evasiveness in her answers to questions raised of her claim that it doubted the credibility of her claim of fear of harm from her creditor or her former boyfriend, while there was no evidence of any such harm to her daughter or any discrimination from her local community other than her own speculations, and that in any event in the absence of any official involvement that state/police protection as well as support and assistances from government agencies and NGOs would be available to the Applicant and daughter upon their return to Indonesia as well as reasonable internal relocation for them to move to other area away from the Applicant’s home district without any risk of being located, and in the absence of any other minor-specific matter or basis which may be relevant to her daughter’s claim, it concluded that their claim for non-refoulement protection failed on all applicable grounds.      

12.On 7 July 2021 the Applicant filed a Form 86 for herself only 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 just stated that her life is not safe in Indonesia without putting forth 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.

13.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. 

14.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 either by herself or with her daughter 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.

15.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. 

16.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 16^th day of September 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