Mutmainah v. Torture Claims Appeal Board

HCAL 90/2019

[2021] HKCFI 3484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 90 of 2019

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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 42-year-old national of Indonesia who last arrived in Hong Kong on 20 March 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 20 March 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 11 November 2015, she did not depart and instead overstayed until 12 June 2016 when she was arrested by police.  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 creditors over his outstanding debts.  She was subsequently released on recognizance pending the determination of her claim. 

2.The Applicant was born and raised in Kecamatan Dempet, Kabupaten Demak, Java Tengah, Indonesia where her father used to borrow money from the local loan sharks for his drinking and gambling habits until when the Applicant was in her teens that her father left the family without repaying all his debts, and as a result his creditors would from time to time come to her home threatening her family to make repayments on behalf of her father.

3.In 1995 the Applicant married her husband and moved to live in his home in Java Tengah but which ended in a divorce in 2002.  Thereafter the Applicant went to work in Jakarta until 2004 when she started working as a foreign domestic helper in Hong Kong, but when her last employment was terminated in November 2015, as she still feared of the threats from her father’s creditors, she therefore did not return to Indonesia and instead overstayed in Hong Kong, and after her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 19 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).               

4.By a Notice of Decision dated 8 February 2018 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”).

5.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 creditors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that her problems with her father’s creditors were private monetary disputes between them which occurred many years ago that it is doubtful that they would still have any adverse interest in her, that in any event in the absence of 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 258 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 father’s creditors to locate her.

6.On 20 February 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 30 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 27 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of previous threats from her father’s creditors against her family many years ago but found no evidence to suggest or any reason to believe that they would still have any adverse interest in her after all these years since her departure from her home village, that in any event it was a private monetary dispute between her father and his creditors without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to safely move 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.  

8.On 10 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forth the following grounds for her intended challenge:

(1)  Procedural impropriety in the Board’s failure to conduct sufficient and due diligent inquiry as to the Applicant’s non-refoulement claim;

(2)  Procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI regarding the Applicant’s case;

(3)  Procedural impropriety/irrationality in the Board’s failure to give reasons for its assessment of BOR 3 risk in the Applicant’s non-refoulement claim;

(4)  Error/misdirection in law in the Board’s failure to take into account the consideration of the psychological strain and threats to the Applicant personally or threats to kill her in the assessment of her claim; and

(5)  That there was no sufficient basis in the Board’s decision that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon her refoulement.     

9.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any relevancy to her claim based even on her own case as stated, nor did she provide 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 did the Board fail to make proper or sufficient inquiry of her claim or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric assessment or evaluations in her case.  None of these assertions were elaborated or presented with any relevancy or particulars or specifics by the Applicant, and as such I do not find any of these grounds reasonably arguable for her intended challenge.

10.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. 

11.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 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.                  

12.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. 

13.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 18^th day of November 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