Fika Wijayanti v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 886/2019

[2023] HKCFI 388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 886 of 2019

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 38-year-old national of Indonesia who last arrived in Hong Kong on 28 September 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 September 2015 or within 14 days of its early termination, but after her employment was prematurely terminated on 19 October 2013, she did not depart and instead overstayed in Hong Kong, and was arrested by police some 8 months later on 14 July 2014. 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 former boyfriend over her father’s debts owed to him and for refusing to marry him in exchange for settlement of her father’s debts.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Banyuwangi, Indonesia. While at school she met her former boyfriend and started a relationship, but in 1991 she decided to put an end to their relationship, but thereafter he continued to come to her home to ask her for reconciliation, and which she always refused.

3.In 2004 the Applicant first came to Hong Kong to work as a foreign domestic helper, and on one occasion in 2013 when she returned to her home village in Indonesia for holiday, she was told by her relatives that her late father used to borrow money from her former boyfriend for years, but after he passed away without repaying his debts, her former boyfriend had come to her home demanding that the Applicant should either repay her father’s debts or marry him in lieu thereof, and so the Applicant returned to Hong Kong and cut off all contacts with her former boyfriend.

4.However, one day while working in Hong Kong, the Applicant received a telephone call from her boyfriend demanding her to repay her father’s outstanding loans or to marry him in exchange, and when she refused, he threatened to kill her when she returned to Indonesia.

5.Hence when her last employment was terminated in October 2013, the Applicant was afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 November 2017 and attended screening interview before the Immigration Department with legal representation from Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 19 December 2017 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 significant inconsistencies and discrepancies in her evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend that caused her to fail to return to her home country which was further undermined by her failure to raise her claim earlier until only after her arrest by the police, that even if such claim is true that it is assessed that the level of risk of harm from her former boyfriend upon her return to Indonesia as low due to the absence of any past ill-treatment from him, that in any event it was a private personal 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 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her former boyfriend to locate her.

8.On 29 December 2017 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 12 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 February 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm form her former boyfriend for overstaying in Hong Kong, that in any event it was a private personal dispute between them 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.On 1 April 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 to which she merely attached copies of the decisions and documents of her hearing bundle for her earlier appeal to the Board but without putting forth 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.In the Applicant’s case, 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 her claim if true 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 10^th day of February 2023.

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