Sunarti v. Torture Claims Appeal Board

HCAL 2407/2019

[2023] HKCFI 2363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2407 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 43-year-old national of Indonesia who last arrived in Hong Kong on 27 September 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated in July 2017, she did not depart and subsequently overstayed in Hong Kong, and was arrested by police some 8 months later on 11 April 2018 and for which she was convicted and sentenced to prison for 12 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her former boyfriend for refusing to marry him. 

2.The Applicant was born and raised in Village Masaran, Sub-district Bendungan, Trenggalek Regency, East Java, Indonesia where she met and dated her boyfriend since 1999.

3.In 2005 she started to come to Hong Kong to work as a foreign domestic helper, and in 2013 when she returned to Indonesia for holiday, her boyfriend proposed that they should get married, but when the Applicant was reluctant due to her job in Hong Kong and that she found her boyfriend to have changed to her disliking, and when she said she needed time to think it over, her boyfriend agreed but warned her that she must marry him or else he would kill her.    

4.Thereafter the Applicant returned to Hong Kong to continue with her employment, during which her boyfriend continued to press her for marriage, and when the Applicant was reluctant, it led to further arguments between them when her boyfriend repeated his death threats against her which caused further deterioration of their relationship over the next 2 years.

5.Eventually the Applicant in 2015 decided to put an end to their relationship by cutting off all their contacts, but when her last employment was terminated in July 2017, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

6.By a Notice of Decision dated 20 August 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”).

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 former boyfriend upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her over the break-up of their relationship, that after all the years since they last had any contact in 2015 that it is not accepted that her former boyfriend would still have any adverse interest in her, that in any event it was a private relationship 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 with more than 13,000 islands 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 boyfriend to locate her.

8.On 17 September 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 4 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.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 former boyfriend that caused her to overstay in Hong Kong, and that in any event it was a private relationship dispute between the 2 of them 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 by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 20 August 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her Form and supporting affirmation she put forward various grounds for her intended challenge which can be summarized as follows:

(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 decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

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

(5) That the Applicant was not given an opportunity to put forward her submissions during her oral hearing nor was she invited to do so which was procedurally unfair to the Applicant;

(6) That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which led to its groundless speculations that it is safe for the Applicant to return 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 necessary or 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 unlawfully fetter its discretion or that the Adjudicator act in a procedurally unfair manner or that the decision was unreasonable or irrational, or what source of news of COI relied on by the Board that were not officially recognized or were simply hearsay or outdated, or in what way was the Applicant prevented from making her submissions or representations during her appeal hearing before the Board when she was in fact invited by the Adjudicator to do so for her claim and that she did so at the hearing without any problem. As such, and as none of these assertions have been elaborated or presented with any relevant particulars or specifics by the Applicant, 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 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.                

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.Moreover, the Applicant recently on 24 August 2023 wrote to request to “close” her application as it is now safe for her to return to her home country in 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 it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 19^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