Ninik Sugiarti v. Torture Claims Appeal Board

HCAL 1211/2022

[2023] HKCFI 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1211 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 41-year-old national of Indonesia who arrived in Hong Kong on 10 September 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 10 September 2010 or within 14 days of its early termination, but on 4 December 2008 she was arrested by police for theft for which she was later convicted and sentenced to prison for 2 months, and as a result her employment was terminated, and upon discharge form prison and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditors for failing to repay her father’s debts, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Ponorogo, East Java, Indonesia. After leaving school she continued to live with her parents and a sister in her home district where her father worked as a housing contractor.

3.One day in early 2008 while she and her family were on their way to visit a relative when they were hit by a truck in a traffic accident that her parents were killed while the Applicant and her sister were injured.

4.Upon subsequently leaving the hospital and returning home, some unknown men claiming to be her father’s creditors came to the Applicant’s home to demand that she and her sister should take up the responsibility of repaying their father’s debts, and threatened to put them in jail if they did not agree to do so, and when they did not have any money to pay, they then took action to sell their father’s house which was however still not enough to settle the debts.

5.To avoid further threats from those men, the Applicant and her sister then fled to hide in their relatives’ places, but when they heard that those men were looking for them everywhere, they decided to leave Indonesia by applying to work as a foreign domestic helper in Hong Kong, which the Applicant subsequently did in September 2008, but after she was later arrested by police for theft and that her employment was as a result terminated, she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 7 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 24 December 2021 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found significant inconsistencies discrepancies and exaggerations in her evidence that the credibility of her claim is considered as highly doubtful, that if indeed there were real monetary disputes between her and her father’s creditors that the level of risk of harm from those men upon her return to Indonesia is assessed as low due to the low intensity and frequency of past ill-treatment from them, that in any event it was a private 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 275 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 Surabaya where it would be difficult if not impossible for her father’s creditors to locate her.

8.On 10 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 11 July 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 13 October 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her father’s creditors, and that in any event it was 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 her father’s creditors that her claim for non-refoulement protection failed on all applicable grounds.

10.On 7 November 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 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.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 49 – 78 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 both the Director and the Board in their respective 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, 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 14^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