Siti Munawaroh v. Torture Claims Appeal Board

HCAL 1685/2021

[2023] HKCFI 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1685 OF 2021

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Indonesia who last arrived in Hong Kong on 17 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 27 March 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 5 May 2018, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 16 January 2021. 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 the creditor of her deceased husband over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kediri, Jawa Timur, Indonesia. After leaving school she worked in a shop, married her husband and raised a family with 3 children in her home district.

3.In 2009 due to their marital differences the Applicant lived apart from her husband, and to make her own living she started to come to Hong Kong in 2010 to work as a foreign domestic helper, and during her return to Indonesia for holidays, she only stayed at her grandmother’s place.

4.On one such occasion in about July 2014 when the Applicant was staying in her grandmother’s place, a local money-lender together with his followers came to her looking for her husband for repayment of a loan which her husband had defaulted and disappeared, and demanded that she being his wife should repay the loan for him, and when the Applicant claimed not to know the whereabouts of her husband and refused to be responsible for his debts, the money-lender made threats against her that if she failed to do so soon, she would be in serious trouble.

5.Thereafter the money-lender would send his men to harass and threaten the Applicant and her family every day until the Applicant departed Indonesia to return to Hong Kong to continue with her employment.

6.In 2015 the Applicant heard that her husband had passed away from his illness without paying off his loan, and that his creditor had sent his men looking for her everywhere, and so when her last employment was terminated on 5 May 2018, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after her subsequent arrest by the police in 2021 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 18 October 2021 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”).

8.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 deceased husband’s creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence that they would still have any adverse interest in her after all these years since 2014 or 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 the Applicant and her husband’s creditor 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 267 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 her husband’s creditor to locate her.

9.On 25 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not find necessary to hold any oral hearing, and proceeded to deal with her appeal in her absence and on paper, and on 30 August 2022 the Board dismissed her appeal and also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from her deceased husband’s creditor but found no evidence that there would still be any adverse interest in her after all these years since 2014, and 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 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 application for non-refoulement protection failed on all applicable grounds.

11.Meanwhile on 14 December 2021, and well before the Board’s decision, the Applicant filed her Form 86 which is now before me for leave to apply for judicial review of the Director’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 Director’s decision, nor did she request any oral hearing for her application.

12.Given the Court of Appeal’s 2019 decision in Re Moshsin Ali [2018] HKCA 549 in which it was held that once an appeal to the Board has been pursued, as the Applicant did in her case, the decision of the Director is consequently and within the administrative structure of the 2-tier process of non-refoulement claims no longer susceptible to judicial review, and therefore I shall treat the Applicant’s present application as one to challenge the Board’s decision instead.

13.As such, and as noted above that 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.

14.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.

15.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.

16.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.

17.Furthermore, the Applicant recently wrote to the Court requesting to withdraw her application as her problem in her home country has been resolved and that it is now safe for her to return to Indonesia.

18.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that there is no longer any problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 30^th day of May 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