Sunarsih v. Torture Claims Appeal Board

HCAL 947/2022

[2023] HKCFI 2866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 947 OF 2022

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 46-year-old national of Indonesia who arrived in Hong Kong 19 January 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 19 January 2014 or within 14 days of its early termination, but when her employment was prematurely terminated on 27 February 2013, she did not depart and instead overstayed in Hong Kong, and more than 7 years later on 22 December 2020 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for converting her religion from Islam to Christianity. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Village Duren Semuruk, District Bendungan, Trenggalek Regency, East Java Province, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home village.

3.In January 2012 the Applicant came to Hong Kong to start her employment as a foreign domestic helper, during which she converted her religion from Islam to Christianity after being baptized in a church in Wanchai, but when she later informed her husband of her conversion, her husband became furious and threatened to kill her upon her return to Indonesia, and so after her employment was terminated in March 2013, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent surrender to the Immigration Department some 7 years later, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 June 2021 and attended screening interview before the Immigration Department with legal representation.

4.By a Notice of Decision dated 17 August 2021 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 assessed the level of risk of harm from her husband 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 husband to seriously harm or kill her or any reason for him to still have any adverse interest in her after no further contact between them since 2013, 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 267 million people spread across a vast territory 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 to locate her.

6.On 26 August 2021 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 20 May 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 June 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence as to her alleged conversion of her religion from Islam to Christianity when she could not even give the date or name of the church or the priest for her baptism or to provide any documentary evidence in support or say anything about the Christian faith that it rejected her claim of fear of harm from her husband over her alleged conversion that caused her to overstay in Hong Kong as wholly incredible and fabricated, that her credibility was further undermined by her failure to raise her claim in 2013 until more than 7 years later in 2020, and that in any event if real it was a private domestic dispute between her and her husband 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 15 September 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  That the Adjudicator failed to make sufficient enquiry before finalizing the decision without making inquiring from the Indonesian authorities;

(2)  That the Adjudicator refused the Applicant’s claim without any solid reason;

(3)  That the Board failed to take into account as to how there is improper balance between Indonesian department and that in many circumstances, religion, culture and the law enforcement agencies also have religion themselves as the majority of Indonesian population is very religious;

(4)  That the Adjudicator failed to take account any finding of credibility the religious factor in the COI and just arrived a conclusion that applies merely to the majority of the Indonesian population but not specifically tailored to the facts that the Director concluded the situation in Indonesia is not such a state resulting in a wholly unacceptable condition where the state has failed or will fail to provide reasonable protection in a formula approach in coming to such conclusion that no one from Indonesia will be entitled to seek protection in Hong Kong;

(5)  That the Board had wrongly exercised its case management power by using a biased and formula approach in coming to such conclusion that state protection is available to the Applicant as a matter of fact;

(6)  That the findings of the Board is contradictory and the balancing exercise used in the assessment of the available COI in assessing the Applicant’s claim had not been conducted properly;

(7)  That the Board’s assessment of the Applicant’s credibility was procedurally unfair and/or irrational;

(8)  That the Board failed to apply high standards of fairness in its decision;

(9)  That the Adjudicator erred in law by excluding or giving no weight to certain evidence by regarding them as hearsay or speculation; and

(10)  That the Board erred in law and/or acted in a procedurally unfair manner by wholesale dismissing the Applicant’s evidence based on vague assertions that amounted to hearsay or speculation.

9.These are however all just vague and bare 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 Adjudicator act in procedurally unfair manner or fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply high standards of fairness or err in its assessment of the Applicant’s credibility. As such, and given the correct findings by both the Director and the Board of the availability of state protection and internal relocation to negate any such risk as claimed by the Applicant as between her and her husband even if it is real, I do not find any of her proposed grounds 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 16 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.

12.The fact is that it has as noted above also been established by both the Director and the Board in their respective 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant recently on 30 August 2023 wrote to withdraw her application as her problem in her home country “has been finished” that she will not face any risk upon her refoulement to Indonesia.

15.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 now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 9^th day of November 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