Sarmi v. Torture Claims Appeal Board

HCAL 1556/2019

[2023] HKCFI 2257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1556 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 42-year-old national of Indonesia who was last permitted to continue to work in Hong Kong on 22 May 2015 as a foreign domestic helper until the expiration of her employment contract on 6 April 2016 or within 14 days of its early termination, but after her employment was prematurely terminated on 31 October 2015, she did not depart and instead overstayed, and was arrested by police on 17 February 2016. 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 former husband for refusing to resume their marriage with him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Ponorogo, East Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.Soon she discovered that her husband was an alcoholic and a drugs abuser, and whenever he was drunk and was high on drugs, he would become abusive and violent towards the Applicant, and finding herself unable to tolerate living with him, the Applicant in 2008 applied and obtained a divorce against her husband, and moved back with her daughter to live with her parents.

4.One day in November 2008 the Applicant ran into her former husband in the street when he demanded her to move back with him to resume their marriage, and when the Applicant refused, he then threatened that if she still refused to do so, he would kill her.

5.To avoid further threats from her former husband, the Applicant in December 2008 left Indonesia to come to work in Hong Kong as a foreign domestic helper. In 2015 when she returned to Indonesia for holiday to visit her parents and daughter, her former husband again came to her home to demand her to return to live with him, and when she again refused, he became furious and beat her and threatened to kill her if she still refused to do so.

6.Thereafter the Applicant returned to Hong Kong to continue with her employment as a foreign domestic helper, but when her employment was prematurely terminated in October 2015, she was afraid to return to Indonesia 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 14 March 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 26 March 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 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 doubted the credibility of the Applicant’s account of threats from her former husband that caused her to leave her home country to come to work in Hong Kong, that even if such risk were true that the level of risk of harm from her former husband upon her return to Indonesia is assessed as low due to the low intensity and frequency of past ill-treatment from him, that due to the long lapse of time since she claimed last contact with him in 2015 that it is not accepted after all these years that he would still have any adverse interest in her, 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 260 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 former husband to locate her.

9.On 10 April 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 7 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies discrepancies and vagueness in the Applicant’s evidence that it did not accept that she is a credible witness that it rejected her claim of threats from her former husband or that she feared of being harmed by him for her failure to return to Indonesia and her overstaying in Hong Kong, and concluded that there are no substantial grounds for believing that the Applicant faces a real risk of being harmed or killed by her former husband if she returned to Indonesia either now or in the reasonably foreseeable future that her claim for non-refoulement protection failed on all applicable grounds.

11.On 6 June 2019 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 in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for 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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 49 – 79 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.

14.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.

15.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.Moreover, the Applicant has recently written to request to withdraw her application as her situation in her home country has improved that she now wants to go back to Indonesia.

17.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 problem returning to her home country, I accordingly dismiss her leave application.

Dated the 4^th day of September 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