Tri Mulyati v. Torture Claims Appeal Board

HCAL 173/2019

[2023] HKCFI 1609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 173 OF 2019

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 47-year-old national of Indonesia who last arrived in Hong Kong on 13 July 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 6 April 2016 as extended or within 14 days of its early termination, but when it was prematurely terminated on 15 March 2016, she did not depart and instead overstayed, and some 1 ½ years later on 5 September 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 creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Boyolali, Solo, Jawa Tengah, Indonesia. After leaving school she came to Hong Kong in 2000 to work as a foreign domestic helper, returning to her parents’ home only during her holidays.

3.In 2011 her mother was diagnosed with cancer and underwent several operations, and to meet her medical expenses, the Applicant in 2013 borrowed a loan from a local money-lender repayable by monthly instalments with interests which she managed to do by remitting her monthly salary to her sister in Indonesia for the loan repayments.

4.Eventually her mother died from cancer in 2015, and her father passed away not long after that, while her sister later also died in 2016 from depression, and when her last employment was prematurely terminated in March 2016, and without any income to repay her creditor who soon made death threats against her, and so the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and 1 ½ years later she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 April 2018 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 8 May 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 his 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 found no substantial grounds for believing that she would be harmed or killed by her creditor and followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her for repayment of her loan, that in any event it was a private monetary 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 261 million people spread across a vast territory 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 creditor to locate her.

7.On 14 May 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 19 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 January 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found numerous inconsistencies and discrepancies in many significant respects of the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to overstay in Hong Kong, which was further undermined by her failure to raise her claim at the first opportunity until some 1 ½ years after her overstay, and concluded that she had fabricated her claim entirely that her application for non-refoulement protection failed on all the applicable grounds.

9.On 18 January 2019 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)  Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event which focused on whether such reliefs showed merely signs of possible improvement;

(2)  Procedural impropriety in failing to conduct sufficient inquiry into the relevant country of origin conditions;

(3)  Procedural impropriety/Irrationality in failing to provide reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

(4)  Error/misdirection in law in failing to take into account the considerations of psychological strain and threats to the Applicant personally or threats directly to kill her;

(5)  That there was no sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

10.These are however just some 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 applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to conduct sufficient inquiry into the relevant COI or to provide reasons for its assessment, or how did the Board fail to provide the basis for its conclusion in rejecting the Applicant’s claim which was essentially based on its adverse finding as to the credibility of her claim of risk arising from a private monetary dispute with her creditor over her debts which even if true would be negated by state protection and reasonable internal relocation being available to the Applicant upon her return to her home country as correctly found by the Director and was confirmed by the Board. As such, and as none of the assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his 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 28 – 49 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 the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, 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 accordingly I refuse her leave application.

Dated the 19^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