Herlina v. Torture Claims Appeal Board

HCAL 2437/2019

[2023] HKCFI 2086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2437 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 / 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 37-year-old national of Indonesia who last arrived in Hong Kong on 11 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 12 August 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 9 August 2018, she did not depart and instead overstayed, and was arrested by police almost 6 months later on 11 February 2019. 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 creditor over her unpaid debts and/or by her family for bringing shame to the family for becoming a lesbian. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Palembang, South Sumatra, Indonesia. After leaving school she in 2007 ran her own catering and garment business by borrowing a loan form a local money-lender repayable within 2 months with interests, but when she later was unable to repay her loan, she was threatened and beaten by her creditor and followers, and so she fled to Jakarta, and to avoid her creditor she in 2009 started to come to Hong Kong to work as a foreign domestic helper, returning to her home in Indonesia only for holidays, during which she was again threatened by her creditor over her outstanding debts.

3.While in Hong Kong she formed a lesbian relationship with a fellow Indonesian foreign domestic helper, but later in 2016 when she informed her family of the same, her parents and brother became furious and threatened to kill her for bringing shame to the family, and so when her last employment was terminated in August 2018, she was afraid to return to her home country and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 29 April 2019 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”).

5.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 in danger of being harmed or killed by her creditor or her family upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill her, that in any event these were just private monetary or family disputes between 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 263 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 anyone to locate her.

6.On 7 May 2019 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 25 July 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 August 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor or family for overstaying in Hong Kong which was further undermined by her failure to raise her claim when she first overstayed until some 6 months later and after her arrest by the police, that there is no evidence that she had carried on with her lesbian relationship with her alleged girlfriend in Hong Kong or that she would openly live as a lesbian upon her return to Indonesia, and that in any event these were her private disputes with her creditor and her family 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 claim for non-refoulement protection failed on all applicable grounds.

8.On 22 August 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  Procedural unfairness in that the Applicant was never given an opportunity to reply to the submissions and representations of the Director in her appeal before the Board;

(6)  That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information resulted in groundless speculations that it would be safe for the Applicant to return to her home country.

9.These are however all just some vague and bare assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 did the Board unlawfully fetter its discretion or that its decision was unreasonable or irrational in the public law sense, or how did the Adjudicator act in a procedurally unfair manner, or what source of news or COI relied on by the Board were not officially recognized or were hearsay or outdated, while it is certainly factually incorrect for her to complain of not being given any opportunity to reply to the submissions or representations of the Director during her appeal hearing which she did give evidence and answer questions raised of her claim before the board with the assistance of an interpreter. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable 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 the Applicant’s 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.

12.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.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw her application as she no longer wants to proceed with her case.

14.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 of no longer wish to proceed with her case, I accordingly dismiss her leave application.

Dated the 11^th day of August 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