Desi-hariyanti and Another v. Torture Claims Appeal Board

HCAL 2205/2019

[2021] HKCFI 3741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2205 of 2019

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 37-year-old national of Indonesia who last arrived in Hong Kong on 21 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 8 February 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 May 2014, she did not depart and instead overstayed, and was subsequently arrested by police on 21 August 2014.  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 some Balinese people over some disputes with her fellow villagers in the past in her home village, for which she was subsequently released on recognizance pending the determination of her claim, and after giving birth to a son, the 2^nd Applicant (“A2”) on 15 January 2017 out of a relationship with a man in Hong Kong, she also raised a similar claim for A2 on the same basis as hers plus also fear that as an illegitimate child A2 may suffer discrimination in Indonesia, and which claim was jointly assessed together with her own claim.

2.A1 was born and raised in Village Desa Wirabangun, Sub-District Mesuji, District Mesuji Lampung, Indonesia.  After leaving school she married her husband and raised a family with one daughter, and after her husband passed away, she returned with her daughter to live with her father in her home village.

3.In about 2010 the Balinese people who lived in her home village started to have some ethnic conflicts with the villagers, and when more Balinese people arrived, they turned violently against the local villagers that drove many of them away including A1, her daughter and her father who fled into the nearby jungle to make their home, and in order to make her living, the Applicant later came to Hong Kong to work as a foreign domestic helper, but after her last employment contract was prematurely terminated in May 2014, she did not return to Indonesia and instead overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection.

4.Whilst being released on recognizance pending the determination of her claim, she met and formed a relationship with a man in Hong Kong and subsequently gave birth to A2, and for whom she also raised a similar claim and completed a Non-refoulement Claim Form (“NCF”) for both of them and attended a joint screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

5.By a Notice of Decision dated 18 January 2018 the Director of Immigration (“Director”) rejected the Applicants’ claim 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that their claimed future risk of harm by those Balinese people in A1’s home village upon their return to Indonesia due to the absence of any past ill-treatment from them, that after having left her home village that there is no reason for those Balinese people to have any further adverse interest in her or A2 whom they have never even met, that A1’s father and daughter have remained safe in Indonesia all these years without any threats from those Balinese people that there is no reason to indicate any future risk to the Applicants, that in the absence of any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that support and assistances for single mothers and illegitimate children are available from both government and non-government organizations as well as reasonable internal relocation alternatives available in Indonesia with a large population of 258 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to safely move with A2 to other part of Indonesia away from her home district in large cities such as Surabaya City where it would be difficult if not impossible for them to be located.

7.On 30 January 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 24 December 2018 before the Board during which A1 gave evidence and answered questions raised of their claim by the Adjudicator for the Board.  On 14 June 2019 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found no evidence of any direct threats made by those Balinese people against A1 in the past which in any event had occurred many years ago and that there is no reason for those Balinese people to have any further adverse interest in her after all these years let alone A2 whom they have never even met and given the fact A1’s father and her elder daughter have never received any threats from those Balinese people in Indonesia all these years, and that in the absence of any official involvement that state/police protection would be available to the Applicants upon their return to Indonesia as well as reasonable internal relocation for them to safely move to other area away from A1’s home district or to where A1’s father and daughter have been safely residing without any risk of being located and with support and assistances from the Indonesian government and NGOs for single mothers and illegitimate children available for them that their claim for non-refoulement protection failed on all applicable grounds.    

9.On 2 August 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in her supporting affirmation of the same date A1 just stated that they reject the decision as the Board disregarded their dangerous situation but without providing any details or elaboration as to how it did so, nor did she put forth any other proper ground for their intended challenge or request any oral hearing for their application.  As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their 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 Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.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 Applicants’ claim.

13.Furthermore, A1 recently on 15 November 2021 filed an affirmation requesting to withdraw their application as they want to return to their home country as soon as possible.  

14.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and given A1’s latest confirmation of their wish to return to their home country as soon as possible, I accede to their request and accordingly dismiss their leave application.

Dated the 14^th day of December 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