Binti-sholekah v. Torture Claims Appeal Board and Another

HCAL 117/2019

[2022] HKCFI 2422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 117 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 18 October 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 June 2012 or within 14 days of its early termination, but when her employment was prematurely terminated on 17 May 2011, she did not depart and instead overstayed, and was arrested by police on 24 October 2011. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband or by the family of the victim of a traffic accident caused by her in revenge, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Purwodadi, Sub-district Genteng. Banyuwangi Regency, East Java, Indonesia. After leaving school she married her husband and moved to live with him in Village Karang Sono, Sub-district Kanigoro, Blitar Regency.

3.However, soon she found her husband to be violent and abusive towards her that after one particularly violent beating by him in 2002, the Applicant left her husband to return to her home village, and when her husband started to threaten to kill her if she refused to return to their home, the Applicant decided to leave Indonesia to avoid such threats by coming to Hong Kong to work as a foreign domestic helper, which she did in August 2002, returning to her home village only for holidays to avoid her husband.

4.During one such occasion in 2006 when she returned to her home village for 2 weeks of holiday, the Applicant was involved in a traffic accident which injured a child, and later when the child died from her injuries, her family blamed the Applicant for the accident and threatened to kill her in revenge, and so the Applicant fled from Indonesia to return to Hong Kong to continue with her employment, but when her last employment contract was terminated on 17 May 2011, she was afraid to return to Indonesia, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim, and after it was rejected, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 29 May 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 29 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 assessed the level of risk of harm from her abusive husband or the family of the accident victim upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her and that after all these years since her departure of Indonesia that it is not accepted that they would still have any adverse interest in her, that in any event these were private personal disputes without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Indonesia, 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 husband or the family of the accident victim to locate her.

7.The Applicant then 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 15 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence as to her claimed fear of harm that it doubted the credibility of her non-refoulement claim for protection, and that in any event it arose from private personal disputes without any state or official involvement that police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area without any risk of being located that her claim for non-refoulement protection failed on all the applicable grounds.

9.On 11 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim which were not reasonable or fair as required by the Wednesbuy test as her right to life must be protected by criminal law from extra-judicial killings that she may face if she were to be deported to her home country;

(2)  That the Adjudicator failed to give her sufficient time or opportunity to arrange relevant evidence for her non-refoulement claim as well as her appeal;

(3)  That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in her case which led to an unfair outcome of rejecting her non-refoulement claim;

(4)  That the Director failed to take into account the fact that the state would be liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but failed to consider or give sufficient weight to such evidence and ruled otherwise instead which was a clear case of unfair attitude shown by the director which in itself is enough to render his decision void;

(6)  That the Director failed to recognize the corruption and incompetency of the administration in her home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions;

(7)  That the Director failed to attain high standards of fairness required by the Wednesbury test and as such his decision should be considered unreasonable in the scope of public law; and

(8)  That the Adjudicator failed to make sufficient enquiry before finalizing the determination and failed to give the Applicant sufficient time and opportunity to arrange relevant evidence for her non-refoulement claim as well as her appeal.

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Director or the Board erred in their decision, or what relevancy would state acquiescence be to her claim which even on the factual basis of her case were private personal disputes without any official or state involvement, or in what way did the Director or the Adjudicator fail to make sufficient inquiry or take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did they fail to give her sufficient time or opportunity to provide evidence for her claim or appeal during which she never raised such issues or requested for more time to enable her to do so either before the Director or the Board. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and 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 being clearly and properly identified by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.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.

12.In the Applicant’s case, the fact is that it has also 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.

13.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.

14.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 5^th day of August 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