Indung Dwi Prahesti v. Torture Claims Appeal Board

HCAL 572/2019

[2022] HKCFI 2698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 572 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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year old national of Indonesia who first arrived in Hong Kong on 1 December 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 1 December 2010 or within 14 days or its early termination, but when her employment was prematurely terminated on 4 January 2010, and her application for extension of stay to look for alternative employment was refused, she left Hong Kong for China, returning on 4 February 2010 as a visitor when she overstayed, and was arrested by police on 13 June 2010. 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 father’s creditor over his unpaid debts and/or her mother’s boyfriend for refusing to marry the creditor in lieu of the loan repayment.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Tambak Rejo Village, Gayam Sari Sub-district, Semarang District, Central Java Province, Indonesia.  She has 12 years of education before working as a shop assistant, a telephone operator and then a domestic helper in Hong Kong.

3.The Applicant’s father borrowed money from a creditor for his hospital expenses but he later passed away in 2005.  The creditor continued to pressure the Applicant’s family and threatened to kill the Applicant if the debt remained unpaid. The Applicant did not know about the amount of his father’s debt.  In early 2007, the Applicant’s mother has met a boyfriend who interfered with this family debt issue and verbally threatened the Applicant to marry the creditor as a settlement of the debt.  The Applicant disagree with such marriage arrangement but was slapped by her mother’s boyfriend for it. In July 2007 she departed her home to work in Jakarta.  In August 2008, the Applicant returned to her home but her mother and her boyfriend both make threats against her to take up the responsibility to repay the debt.

4.The Applicant departed her home again and stayed in Surabaya for 5 months uneventfully. In December 2008, she entered Hong Kong to work as a foreign domestic helper but her contract was terminated prematurely. She then went back and forth between Hong Kong and China and she last entered Hong Kong on 4 February 2010.  Since then she overstayed in Hong Kong and was later arrested by the police on 13 June 2010 and was referred to the Immigration Department. She raised her non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 23 June 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 31 July 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 the creditor and her mother’s boyfriend upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence that they had any intentions to carry out the verbal threats to kill her, that the Applicant’s later return to her home in August 2008 indicated that she did not have a genuine fear of her safety, that the Applicant has lost contact with her family since 2008 which further minimise the Applicant’s risk of being harmed as a substantial time has elapsed, that the dispute with the creditor and her mother’s boyfriend was purely a private and personal dispute between 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 260 million people spread across a territory of more than 1,904,569 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult to move to other part of Indonesia away from her home district in large cities such as Jakarta and Bali where it would be difficult if not impossible for her father’s creditor and her mother’s boyfriend to locate her.

7.On 6 August 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 6 November 2018 before the Board during which she gave oral evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found no basis to support the Applicant’s claim regarding her fear of harm from her father’s creditor upon her return to Indonesia, that the Applicant did not sustain any injury during the encounters with the creditor and her mother’s boyfriend, that neither the creditor or her mother’s boyfriend has any intentions to carry out the verbal threats, and that in any event reasonable internal relocation would be available to her to safely move to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.On 28 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 of the same date, 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.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.

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

Dated the 31^st day of August 2022

Form CALL-1