Sumiarsih Bt Narpan Racim v. Torture Claims Appeal Board

HCAL 626/2019

[2022] HKCFI 3202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 626 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 arrived in Hong Kong on 18 July 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 July 2015 or within 14 days of its early termination, but after her last employment was prematurely terminated on 24 September 2013, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 27 April 2015. 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 deceased husband’s 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 Subang, West Java, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home district.

3.In April 2012, as her husband was then out of work and needed money to meet their family’s expenses, he therefore borrowed a loan from a local money-lender repayable within 3 years and with interest payments every month until its repayment.

4.Unfortunately shortly thereafter her husband died in a traffic accident without repaying his loan, and when the money-lender started to send men to the Applicant’s home to demand that she repaid her husband’s debts instead, and after being threatened by them several times and on one occasion being beaten badly by them, the Applicant pleaded with the money-lender to allow her to repay by instalments by applying to work as a foreign domestic helper in Hong Kong to earn money, which she eventually did on 18 July 2013 when she came to Hong Kong to start her first employment and to remit money to her family to repay her husband’s creditor by monthly instalments.

5.However, when her last employment was prematurely terminated on 24 September 2013, and without any income to repay her husband’s creditor, the Applicant was afraid to return to Indonesia, and so she overstayed in Hong Kong, and after her arrest by the police in 2015 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 December 2017 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 9 January 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”).

7.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 she would be in danger of being harmed or killed by her husband’s creditor and followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event it was a private monetary 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 vast territory of about 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 Jakarta and Surabaya where it would be difficult if not impossible for anyone to locate her.

8.On 18 January 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 3 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 26 February 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted her overall credibility that she is not a witness of truth, that what she had presented to the Director and the Board as evidence is not credible,  and concluded that her claims concerning her husband’s loan and the threats and assault from the money-lender and followers had all been fabricated so as to create a false basis for her non-refouleemnt claim which the Board found to have failed on all applicable grounds.

10.On 5 March 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 stated that she is not satisfied with the decision but without putting forward any proper ground for her intended challenge, 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.

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.Essentially the Board rejected the Applicant’s claim on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 42 – 44 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim during her appeal hearing before the Board, and in the absence of any error of law 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 to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been 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.

14.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.

15.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 25^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