Sri Wartini v. Torture Claims Appeal Board

HCAL 143/2019

[2022] HKCFI 3183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 143 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 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 53-year-old national of Indonesia who last arrived in Hong Kong on 20 May 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 May 2017 or within 14 days of its early termination, but when it was prematurely terminated on 22 April 2017, she did not depart and instead overstayed, and was arrested by police on 15 June 2017.  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 husband’s creditors over his outstanding debts and/or by the authorities over her husband’s affiliation with some deviant religious sect. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Nganjuk, East Java, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.One day in 2008 her husband suddenly disappeared without a trace, and shortly thereafter some unknown men came to the Applicant’s home looking for him, claiming that her husband owned them money and threatened her to repay the debts on his behalf, and when she was unable to do so, they tried to attack her but she managed to make her escape and fled to Bandung to take shelter in a friend’s place.   

4.To avoid further threats from her husband’s creditors, the Applicant then went to Surabaya to apply to work as a foreign domestic helper in Hong Kong, during which she was told by a friend of her husband that her husband had joined some deviant religious sect for which she fears that the authorities might be looking for her, and so in March 2008 she departed Indonesia for Hong Kong to start her employment, but when her last employment was prematurely terminated on 22 April 2017, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 March 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 4 April 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 claimed risk of harm from her husband’s creditors over his debts or from the authorities over his alleged affiliation with some deviant religious sect upon her return to Indonesia is real and foreseeable due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any adverse interest from the authorities in her or her husband given the fact that she had been able to come and go of her country all these years without problem for her employment in Hong Kong, that in any event her problem with her husband’s creditors is a private monetary dispute 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 more than 1.8 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 Jakarta where it would be difficult if not impossible for anyone to locate her.

7.On 11 April 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 28 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence as to her claim of fear of harm from her husband’s creditor and the authorities over her husband’s alleged affiliation with some deviant religious sect incredible and unreliable, that there is no evidence of any adverse interest in the authorities in her or her husband for any reason given the fact that she had been able to enter and leave her country without any problems all these years for her employment in Hong Kong, and that in any event whatever problem that she might have with her husband’s creditors is a private monetary dispute 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 to other part of the country away from her home district without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.      

9.On 15 January 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, and in her supporting affirmation of the same date she just repeated her claim as before that she would be killed by her husband’s creditors if refouled to Indonesia but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of 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 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.                

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 17^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