Arge Widya Astuti v. Torture Claims Appeal Board

HCAL 115/2019

[2021] HKCFI 3569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIS TNo 115 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 41-year-old national of Indonesia who first arrived in Hong Kong in 2006 with permission to work as a foreign domestic helper until the expiration of the employment contract, but when her last employment was prematurely terminated on 26 July 2015, she did not depart and instead overstayed in Hong Kong and was arrested by police on 18 April 2016. 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 husband or his creditors for failing to send him money to repay his loan and/or discriminated by the community for becoming a lesbian while in Hong Kong and that she also needed to remain in Hong Kong to receive medical treatment for her health problem. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Trenggalek, Jawa Timur, Indonesia. After leaving school she married her husband who was a farmer and a construction worker and raised a family with a daughter in her home district.

3.As her husband’s income were unable and insufficient to put their daughter through schooling, the Applicant started to work in Hong Kong in 2006 as a foreign domestic helper, remitting money from her income every month to her husband for their family’s expenses.

4.In 2012 while working in Hong Kong, the Applicant formed a lesbian relationship with a woman, and when she told her father of the same, her father became furious that it had brought shame to his family.

5.In 2014 when the Applicant returned to her home district in Indonesia for holiday, she was told by her husband that he had borrowed a loan from the local loan sharks in her name for purchasing a motor cycle, and demanded her to remit additional money to him every month to assist in his loan repayment. The Applicant was upset by her husband’s demand and left to return to Hong Kong to continue with her employment. Thereafter her husband called her frequently demanding for more money with threats to kill her if she failed to do so, while she was also told by her family that his creditors had come to their home looking for her over his loan.        

6.On 26 July 2015 when her last employment was prematurely terminated, she was afraid to return to Indonesia due to the threats from her husband and his creditors, and so she overstayed in Hong Kong, and after she was arrested by police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 23 March 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”).

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 her perceived fear of harm from her husband or his creditors or the Muslim community will be real and foreseeable 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 discrimination against her lesbian relationship by the Muslim community, that her problems with her husband or his creditors 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 there are laws in Indonesia to protect lesbians and gay persons from discriminations and that as an Indonesian citizen she would also be entitled to medical care for her health issues, while reasonable internal relocation alternatives will also be available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.9 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 such as Jakarta where it would be difficult if not impossible for her husband or his creditors to locate her.

9.On 4 April 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 12 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her claimed fear of harm from her husband or his creditors over his loan that it doubted the credibility of her claim that her husband had borrowed the loan in her name and that she was not a witness of truth and that she had fabricated such claim for non-refoulement protection, that in any event that state/police protection would be available to her upon her return to Indonesia, that she also conceded at her appeal hearing that she is no longer a lesbian and has no fear of any discrimination from the Muslim community against her as such, while COI also show that proper and adequate medical care will also be available to meet her health issues in Indonesia that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

11.On 11 January 2019 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 repeated her claim of fear of being harmed by her husband and the loan shark if refouled to her home country but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 52 – 66 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

14.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, which is 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.                

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 26^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