Sri Wahyuni v. Torture Claims Appeal Board

HCAL 309/2019

[2022] HKCFI 1067

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 309 OF 2019

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 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 38-year-old national of Indonesia who last arrived in Hong Kong on 13 July 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 July 2013 or within 14 days of its early termination, but when her employment was prematurely terminated on 29 September 2012, she did not depart and instead overstayed, and was arrested by police on 20 March 2013.  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 over her outstanding debts and/or by her husband over her loan problem with her creditor. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Desa Banpu, Gemarang, Madiun, East Java in Indonesia. After leaving school she went to work as a domestic helper in Taiwan before returning to Indonesia in 2003, and later she married her husband and raised a family with one child. 

3.In order to meet her family’s expenses, the Applicant in 2007 borrowed a loan from a local loan shark repayable within one year and with monthly interest payments without informing her husband as she knew he would not approve it, but by 2009 when she was unable to repay her loan, the loan shark started to come with his men to her home to threaten her and beat her, and eventually her husband had had to pay off part of the loan for the Applicant in order to buy time for the balance of the loan, but he was furious with the Applicant for incurring the loan against his will, and threatened to kill her for bringing the problems and dishonor to him.

4.To avoid the threats and harm from her creditor and her husband, and in order to earn money to pay off the remaining balance, the Applicant in 2011 came to Hong Kong to work as a foreign domestic helper and to remit money to Indonesia for her loan repayment, but when her last employment was terminated on 29 September 2012, she was afraid to return to Indonesia, and so she overstayed in Hong Kong until 13 October 2013 when she was arrested by police, and after she was referred to the Immigration Department, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 28 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”).

6.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 creditor or husband upon her return to Indonesia is real and foreseeable due to the low intensity and frequency of past ill-treatments from them, that there was no evidence of any real intention of their part to seriously harm or kill her other than mere pressure from her creditor to force her to repay her loan or emotional reaction from her husband over her loan problem, that in any event they were private monetary and domestic 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 about 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 or Surabaya where it would be difficult if not impossible for her creditor or her husband to locate her.

7.On 14 March 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 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found even on her own case that the Applicant no longer has any concern over the loan problem, while her remaining fear of harm from her husband is not well-founded as she has had no further contact with him since 2011 and that there is no reliable evidence of any further threats from him other than her bare assertion of having seen threating comments in his Facebook account in 2015, nor is there any reason why after all these years that her husband would still have any adverse interest in her over her said loan problem which she has conceded as no longer any concern, and that in any event in the absence of any official involvement that state/police protection as well as support and assistance from various governmental departments and NGOs would be available to deal with any domestic issues that she may still have with her husband upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.     

9.On 1 February 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 or in her supporting affirmation to which she just attached a copy of the decision but without putting forward 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.

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 the Director in his decision that the risk of harm in the Applicant’s claim either from her creditor or her husband is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, 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.     

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 13^th day of April 2022.

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