Siti-mutmainah v. Torture Claims Appeal Board

HCAL 673/2022

[2022] HKCFI 3178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 673 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 42-year-old national of Indonesia who last arrived in Hong Kong on 21 June 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract as extended to 29 October 2021 or within 14 days of its early termination, but when it was prematurely terminated on 11 March 2021, she did not depart and instead overstayed, and was arrested on 25 April 2021. 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 abusive husband for failing to send him money to repay his debts and/or by his creditor over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Sale Rembang, Jawa Tengah, Indonesia. After leaving school she married her husband who was a farmer, and raised a family with 2 children in his home district in Karang Nungger.

3.Soon she discovered that her husband was addicted to gambling and drinking, and when drunk he would be abusive and even violent towards her by pushing slapping and beating at will.

4.After a particularly violent assault by her husband in 2001 when she had to be taken to the hospital for medical treatment, the Applicant demanded to divorce her husband who however refused and threatened to kill her if she dared to do so, but thereafter he moved to work in Tanggerang, returning home only occasionally.

5.In 2002 the Applicant went to work in Malaysia as a domestic servant until 2005 when she returned to Indonesia to reside with her parents in her home district without resuming cohabitation with her husband.

6.In 2007 she then went to work in Singapore as a domestic helper before coming to Hong Kong in 2010 to work as a foreign domestic helper.

7.In 2016 while working in Hong Kong, she was contacted by her husband who demanded her to remit money to him in Indonesia every month to help him with his loan repayments, and threatened to kill her if she refused to do so, to which she reluctantly agreed by making monthly remittances to him from her salary.

8.However, after her last employment was terminated in March 2021, and when she was without any income to remit money to him, her husband threatened to kill her if she returned to Indonesia, and so the Applicant was afraid to depart and instead overstayed in Hong Kong, and after her arrest in April 2021, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 21 December 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”).

10.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 husband or his creditor 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 at all of any threats from his creditor who does not even know the Applicant, while her problem with her husband was a private domestic dispute between the 2 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 207 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 the country away from her home district in large cities such as Bali where it would be difficult if not impossible for her husband or his creditor to locate her.

11.On 4 January 2022 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 27 June 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 July 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found no reliable evidence of any real intention of the Applicant’s husband to kill her over his debts problem or any evidence of any threats at all from his creditor that it doubted the credibility of her claim of fear of harm from them for her overstaying in Hong Kong, and that in any event her problems with them were private domestic or monetary disputes without any official involvement that state or police protection would be available to her upon her return to Indonesia if needed that her claim for non-refoulement protection failed on all applicable grounds.

13.On 27 July 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, and in her supporting affirmation of the same date she just attached a copy of the decision and stated that she is not satisfied with it because “it is away from facts and reality” and that there is no transparency in her appeal 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. As such I do not find either of them reasonably arguable for her intended challenge, 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 application.

14.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.

15.In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.

16.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.

17.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 14^th day of October 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