Cicik Purnamasari v. Torture Claims Appeal Board

HCAL 288/2023

[2023] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 288 OF 2023

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Indonesia who last arrived in Hong Kong on 30 October 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 17 December 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 21 September 2017, she did not depart and instead overstayed, and almost 9 months later on 11 June 2018 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 former husband for divorcing him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Ngawi, Jawa Timur, Indonesia. After leaving school she worked as a housemaid in Surabaya where she met and subsequently married her husband.

3.After their marriage the Applicant however found her husband to be hot tempered and abusive by often yelling at her and beating her at will, and in order to avoid his abuses she in 2013 went to Taiwan to work as a domestic helper.

4.In 2015 she returned to Indonesia and suggested to her husband to have a divorce in view of their poor relationship, but her husband became furious and threatened to kill her if she dared to divorce him. 

5.As a result the Applicant left her husband to return to her parents’ home in Ngawi, but on one occasion while travelling on a motorcycle in her home district, the Applicant was knocked down by a car driven by her husband and suffered serious injuries including fracturing her limbs, and before she was taken to the hospital, her husband warned her that if she dared to divorce him, next time her injuries would be much worse.

6.Fearing for her life, the Applicant on 15 June 2015 departed Indonesia for Hong Kong to work as a foreign domestic helper, and in 2016 with her family’s help she obtained a divorce dissolving her marriage with her husband who then sent threatening messages to her that he would kill her when she returned to Indonesia, and so when her last employment was terminated in September 2017, she was afraid to return to Indonesia, and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 March 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 19 April 2022 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 former husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention of her former husband to seriously harm or kill her or that he would still have any adverse interest in her after all these years, that in any event it was a private domestic 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 276 million people spread across a vast territory of more than 1 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 areas 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 husband to locate her.

9.On 13 May 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 10 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 25 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her former husband that caused her to overstay in Hong Kong which was further undermined by her failure to first raise her claim until months later and only after her arrest by the police, and that in any event even if her claimed risk were real that it arose from some private domestic dispute with her former husband 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 areas of the country without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.     

11.On 24 February 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Board reached the decision wrongly in assessing her non-refoulement claim in that the decision was not reasonable or fair as required by the Wednesbury test in failing to recognize that the right to life must be protected by the criminal law from extra-judicial killings that she may face if deported to her home country;

(2) That the Board failed to give her sufficient time and chance to arrange relevant evidence for his non-refoulement claim as well as her appeal;

(3) That the Board failed to appreciate or give proper importance or weight to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting the Applicant’s non-refoulement claim;

(4) That the Board failed to take into account or to give enough weight to the argument that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state should be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but which the Board failed to consider or give enough weight to those evidence and ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the board which in itself is enough to render its decision void;

(6) That the Board failed to recognize that corruption and incompetency of the administration in the Applicant’s country is a very serious problem as various human rights organizations have compiled reports that stated testament to the Applicant’s assertions;

(7) That the Board failed to attain the high standard of fairness required by the Wednesbury test in its decision which should be considered unreasonable in the scope of public law.  

12.These are however all just vague and bare assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or what relevancy was State Acquiescence or extra-judicial killings to her claim, or when had she ever been tortured by anyone let alone by the law enforcement agencies or politicians as claimed when the factual basis of even her own case at the highest was a private personal dispute with her former husband over their divorce without any official involvement at all.  As such and as none of these assertions were relevant or elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.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.

14.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.                

15.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.

16.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse her leave application.

Dated the 9^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