Case Document

100%Judiciary

HCAL 1248/2019

[2023] HKCFI 1137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1248 OF 2019

BETWEEN
	Sartinah	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 43-year-old national of Indonesia who last arrived in Hong Kong on 15 October 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 15 October 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 25 April 2009, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 18 December 2011 and for which she was subsequently convicted and sentenced to prison for 2 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she made a refugee application to the UNHCR for which she was released on recognizance but which she subsequently absconded and was re-arrested by police on 27 July 2014 when she then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her family for bringing shame and dishonor to them over her religious conversion from Islam to Christianity in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Cilacap Regency, Central Java Province, Indonesia. After leaving school she went to work as a domestic helper in Singapore before returning to Indonesia in 2001 to marry her husband and raised a family with a son in her home district.

3.In 2006 she came to Hong Kong to work as a foreign domestic helper, during which she became acquainted with some fellow Indonesians who were Christians and became interested in their religion by following them to attend their church services in Hong Kong, and eventually in 2009 she decided to convert her religion from Islam to Christianity, but when she told her father and husband of her intention, they became furious and threatened to kill her should she go ahead to convert her religion and thus brought shame and dishonor to her Muslim family, and so thereafter she ceased all contacts with them.

4.The Applicant then went ahead to be baptized and became a Christian, but when her last employment was prematurely terminated on 25 April 2009, she was afraid to return to Indonesia due to her family’s death threats, and so she overstayed in Hong Kong, and after she was arrested more than 2 years later on 18 December 2011 and was convicted for breach of her conditions of stay and was sentenced to prison for 2 months, and upon her discharge and was referred to the Immigration Department for deportation, she made a refugee application to the UNHCR and was released on recognizance but which she subsequently absconded until her arrest on 27 July 2014 when she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 November 2017 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 29 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”).

6.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 family upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, there is no evidence of any real intention of them to seriously harm or kill her, that in any event it was a private family 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 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 family members to locate her.

7.On 11 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 28 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 May 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of threats from her family over her religious conversion from Islam to Christianity but found that it was a private personal dispute within her family without any state or official involvement that state or 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.

9.On 9 May 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 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.

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 5^th day of May 2023

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 5 May 2023 Sartinah Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 5 May 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 9895/18/1/168/I1000 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3124/17 (Formerly RBCZ 3001405/14 (T8I46)) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)