Chaerala v. Torture Claims Appeal Board

HCAL 218/2021

[2023] HKCFI 2140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 218 OF 2021

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 32-year-old national of Indonesia who last arrived in Hong Kong on 18 July 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 18 July 2019 or within 14 days of its early termination, but her employment was prematurely terminated on 2 July 2019 after she was arrested by police for attempted theft for which she was subsequently convicted and sentenced to prison for 2 months, and upon her discharge and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her step-brother for resisting his sexual advances and attempted rape against her. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Kebumen, Jawa Tengah, Indonesia with her step-mother and step-brother after the passing of her father while she was still in school. After leaving school she worked as a waitress and continued to reside with her step-mother and step-brother in her home district.

3.One day in 2009 while they were alone at home, her step-brother tried to make sexual advances to the Applicant, but was pushed away by her who then ran out of the house.

4.After 2 further occasions when her step-brother tried to sexually molest and rape her but she was able to put up a fight to resist him, her step-brother then beat her and threatened to kill her next time if she still resisted his advances.

5.As a result the Applicant became fearful for her safety, and to avoid further threats from her step-brother, she went to Taiwan in 2012 to work as a domestic servant, and in 2015 she started coming to Hong Kong to work as a foreign domestic helper, but when her last employment was terminated in 2019 after her arrest by the police for theft, and as she was afraid of being deported back to Indonesia, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 14 May 2020 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 step-brother 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 step-brother to seriously harm or kill her or to still have any further adverse interest in her after all these years since she left the country in 2012, that in the absence of 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 267 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 step-brother to locate her.

8.On 26 May 2020 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 21 October 2020 before the Board during which she declined to give further evidence upon adopting those already given to the Director and available in the hearing bundle but did answer questions raised of her claim by the Adjudicator for the Board. On 5 February 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from her step-brother over his past attempts of sexual abuse or rape against her but found no evidence of any foreseeable future risk from him or of any further adverse interest in her after all these years of no contact between them since 2012, and that in any event in the absence of 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 by her step-brother that her claim for non-refoulement protection failed on all applicable grounds.

10.On 24 February 2021 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)  That the Board reached its decision wrongly in assessing the Applicant’s non-refoulement claim;

(2)  That the decision was not fair or reasonable as required by the Wednesbury test;

(3)  That the Board failed to recognize that the Applicant’s right to life must be protected by criminal law from extra-judicial killings that the Applicant may face if deported back to her home country.

11.These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant 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 reach the decision wrongly or that the decision was unfair or unreasonable, or what relevancy are extra-judicial killings to her claim which even on the factual bases of her own case was a private dispute between her and her step-brother without any state or official involvement that there is simply no evidence at all to suggest in her claim that she may face any such risk upon returning to her home country. As such and as none of these grounds are relevant or elaborated with any proper details or specifics, I do not find any of them reasonably arguable for her intended challenge.

12.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.

13.In the Applicant’s case, the fact is that it has been correctly 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.

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 has recently written to request to withdraw her application as the problem that she had in her home country has now been resolved and that she just wants to go home to Indonesia.

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 she has no more problem returning to her home country, I accordingly dismiss her leave application.

Dated the 18^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