Yeni v. Torture Claims Appeal Board

HCAL 16/2020

[2023] HKCFI 1494

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 16 OF 2020

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 43-year-old national of Indonesia who last arrived in Hong Kong on 9 December 2016 as a visitor after her last employment as a foreign domestic helper had earlier been terminated and was allowed to remain as a visitor up to 8 January 2017 when she did not depart and instead overstayed, and more than 4 months alter on 22 May 2017 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father for failing to help him to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Trenggalek, East Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.After later divorcing her husband, the Applicant in 2006 went to work as a domestic helper in Taiwan, and in 2011 she started to work as a foreign domestic helper in Hong Kong.

4.In about 2013 while working in Hong Kong, she was asked by her father on the phone for money to help him to pay off his debts, and when she was unable to do so, he then demanded that she should marry his creditor in settlement of his debts, and when she refused, he became furious and threatened to kill her when she returned to Indonesia.

5.As she had been abused by her father in the past as a child, and as her father had a violent temper, the Applicant became fearful that she would be harmed by him if she returned to Indonesia, and when her last employment was terminated on 26 November 2016, she was afraid to return to Indonesia, and so she subsequently overstayed in Hong Kong and later raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 September 2018 and attended screening interview before the Immigration Department with legal representation.

6.By a Notice of Decision dated 26 October 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 assessed the level of risk of harm from her father upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her father to seriously harm or kill her other than to put pressure on her to help him with the payment of his debts, that in any event it was a private family 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 father to locate her.

8.On 8 November 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 5 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 December 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her father over her refusal to help him with his debts that caused her to overstay in Hong Kong which was further undermined by her failure to raise it until several months after her last arrival in Hong Kong, and that in any event in the absence of any reliable evidence of any real threats being made against her by her father or of any real intention of him to seriously harm or kill her as claimed by her over what was essentially a private family dispute between them without any official involvement that state or police would be available to the Applicant upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

10.On 2 January 2020 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, 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 33 – 58 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.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, 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.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.Furthermore, the Applicant recently filed an affirmation requesting to withdraw her application as it is now safe for her to return to her home country.

16.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 it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 7^th day of June 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