Susiana v. Torture Claims Appeal Board

HCAL 600/2023

[2023] HKCFI 1627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 600 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 43-year-old national of Indonesia who last arrived in Hong Kong on 7 May 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 12 April 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 24 September 2009, she did not depart and instead overstayed, and was arrested by police almost 5 years later on 16 July 2014. 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 her husband’s creditor over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Blitar City, East Java, Indonesia before moving with her family to Kalimantan. After leaving school she married her husband and moved to his home in Central Java where they raised a family with a daughter.

3.In 2006 the Applicant started to come to Hong Kong to work as a foreign domestic helper, while her husband ran a convenience store in his home district, but in 2008 he lost the business and was bankrupted, and in order to pay off his suppliers, he borrowed a loan from a local money-lender repayable by monthly instalments with the help from the Applicant’s remittances of her salary from Hong Kong.

4.However in 2009 the Applicant was told by her father that her husband had fled to Kalimantan from his creditor after having ceased his loan repayments, and as a result his creditor sent men to look for him everywhere including to the home of the Applicant’s parents, and threatened them that the Applicant should repay the loan of her husband, and so after her last employment was terminated in September 2009, the Applicant was afraid to return to Indonesia, and therefore overstayed in Hong Kong, and after her subsequent arrest by police almost 5 years later in 2014, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 30 January 2015 and a Notice of further Decision dated 21 November 2016 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 decisions 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 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 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 her husband and his 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 253 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 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 husband’s creditor to locate her.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which she attended an oral hearing on 16 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decisions.

8.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 husband’s creditor over her husband’s debts that caused her to overstay in Hong Kong, and that in any event it was a private monetary dispute between her husband and his creditor without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to 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 21 April 2023 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 forth any proper ground for her intended challenge, nor was she able to do so at the hearing of 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 if real 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 accordingly refuse her leave application.

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