Isrofah v. Torture Claims Appeal Board

HCAL 2316/2018

[2021] HKCFI 3865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2316 of 2018

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 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 40-year-old national of Indonesia who last arrived in Hong Kong on 19 September 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 27 April 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 17 October 2013, she did not depart Hong Kong and instead overstayed until 20 August 2015 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 creditor and/or her husband over her outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Gaprang Village, Kanigor Sub-district, Blitar Regency, East Java, Indonesia.  After leaving school she worked in a factory in Malaysia before coming to Hong Kong in 2003 to work as a foreign domestic helper, and in 2008 she returned to Indonesia to marry her husband before returning to Hong Kong to continue with her employment.

3.In 2010 she assisted her younger brother with his university expenses by borrowing a loan from a local money lender in Indonesia repayable by instalments with monthly interest payments which she made from her salaries earned in Hong Kong, but in 2012 she was having difficulties making her repayments, and when her creditor started to come to her home in Indonesia causing harassments to her family and threatening to kill her when she returned to Indonesia, which infuriated her husband who scolded the Applicant over the debts and also threatened to kill her, and so when her last employment was prematurely terminated in October 2013, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 October 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 31 October 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”).

5.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 there will be any real or substantial risk of her being harmed or killed by her creditor or her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on their part to harm or kill her other than to put pressure on her to repay her debts, that in any event they 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 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 creditor or her husband to locate her.

6.On 9 November 2017 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 5 July 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 24 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found various important aspects of the Applicant’s evidence as to her claim of fear of harm from her creditor and her husband over her debts not credible and that she was not considered to be a credible witness with her credibility further undermined by her failure to raise her claim at the earliest opportunity until almost 2 years later and only after her arrest by the police, and that in any event in the absence of any official involvement in what is essentially a private domestic or monetary dispute that state/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 areas 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 23 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached copies of the decisions but without putting forth any proper ground for her intended challenge, nor did she attend the hearing of her application without any explanation.  As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

9.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.

10.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 – 76 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 findings of the Board.  

11.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 the Applicant’s 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 24^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