Danik-dwi-sugiarti v. Torture Claims Appeal Board

HCAL 299/2022

[2022] HKCFI 2138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 299 of 2022

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 38-year-old national of Indonesia who last arrived in Hong Kong on 3 May 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 3 May 2020 or within 14 days of its early termination, but on 6 April 2020 she was arrested for making false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 2 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for refusing to reconcile with him.

2.The Applicant was born and raised in Jember, Jawa, Timur, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home village.

3.During the marriage she discovered that her husband was addicted to drinking and gambling, and would be abusive towards her from time to time by pushing and slapping and punching her at will.

4.In 2009 she discovered that he was also having an affair with another woman which she found intolerable, and so one day she left home to stay in a friend’s place in another town, but was later found by her husband and was forced to go home with him under his threats.

5.In order to leave him for good, the Applicant proposed to work in Hong Kong as a foreign domestic helper to help with the family’s income, to which her husband agreed on her promise to remit her monthly income to him for his use, and so later in 2009 she departed Indonesia to work in Hong Kong and regularly remitted her income to her husband in Indonesia, but by 2017 when her children had completed schooling, she stopped her remittance to her husband and divorced him instead, and when he made death threats against her after she refused to reconcile with him, she then cut off all contacts with him.

6.However, when her last employment was terminated in 2020, she was afraid to return to Indonesia, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 30 November 2021 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 there will be any real and substantial risk of her being harmed or killed by her former husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her other than to try to get money from her, that it was in any event a private domestic dispute between the two of them 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 275 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 Bali or Jakarta where it would be difficult if not impossible for her former husband to locate her.

9.On 9 December 2021 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 11 February 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 March 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board accepted the Applicant’s evidence as to her claim of being abused and beaten by her former husband during their marriage but doubted her claim of being threatened by him for reconciliation after their divorce, and found in any event that it was a private domestic dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely away from her home district to other part of the country without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.

11.On 5 May 2022 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 of the same date in which she just stated that she is not satisfied with the decision as it is “away from the facts and reality” of her case and that there was no transparency in the making of the decision but without providing any details or particulars or elaboration as to how it is so, nor did she request any oral hearing for her application.

12.Given the fact that the Board did not take any issue with the Applicant’s evidence of having endured an abusive and violent marriage from her former husband in its detailed analysis and reasoning for its assessment and determination of her claim which even on her own case at the highest was a private domestic dispute between them without any official involvement, 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 of her complaints reasonably arguable or any basis for her intended challenge.

13.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.

14.In the Applicant’s case, the fact is that it has been correctly 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.

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 July 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