Siti Nurhayati v. Torture Claims Appeal Board

HCAL 1028/2023

[2023] HKCFI 2869

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1028 OF 2023

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 25 February 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 December 2021 or within 14 days of its early termination, but was arrested by the Immigration Department on 3 August 2021 for undertaking unauthorized employment in breach of her conditions of stay, during which she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her Muslim elder brother for having given birth to a child out of wedlock in contrary to Islamic law. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born into a Muslim family and raised in Ds Mbojo Tejorejo, Kendal, Jawa Tengah, Indonesia. After leaving school she first came to Hong Kong in 2008 to work as a foreign domestic helper.

3.In 2019 while in Hong Kong she met and formed a relationship with a Pakistan man, but in August 2021 she was arrested by the Immigration Department for breaching her condition of stay and was subsequently released on bail pending her trial.

4.Shortly thereafter in September 2021 she became pregnant from her relationship with her Pakistan boyfriend who however was not pleased about it and eventually left the Applicant, and when she later informed her family of her pregnancy, her elder brother was furious and threatened to kill her for bringing shame to their Muslim family, and so the Applicant was afraid to return to Indonesia and therefore raised her non-refoulement claim for protection.

5.In January 2022 she gave birth to her child prematurely who then died shortly thereafter, but as she still feared of being harmed or killed by her elder brother, the Applicant proceeded with her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 January 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 26 April 2022 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed by her elder brother upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her elder brother to seriously harm or kill her, that in any event it was a private dispute between them within their family 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 275 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 elder brother to locate her.

8.On 5 May 2022 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 13 February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 June 2023 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 elder brother over her unwed pregnancy in contrary to Islamic law, but found no evidence of any real intention of her brother to seriously harm or kill her or that he would still have any adverse interest in her after all these years since the death of the child, and that in any event it was a private dispute between them within their 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.

10.On 26 June 2023 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 referred to various legal principles and put forward various grounds for her intended challenge which can be summarized as follows:

(1)  That the Board did not address the issues of her claim properly and instead just came up with the assessment on more or less of a template basis;

(2)  That the Board wrongly assessed that state protection would be available to the Applicant without recognizing the fact that in Indonesia having children without marriage is against the Islamic law;

(3)  That the Board wrongly exercised its case management power by placing undue weight on the report of availability of state protection to the Applicant; and

(4)  That it was procedurally unfair to the Applicant that she was provided with a hearing bundle with the majority of documents in English which she cannot read or understand without translation or legal representation for her appeal before the Board.

11.These are however mostly 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 how did the Board fail to properly address the issues raised of her claim, or in what way did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. 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.

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.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her for her appeal before the Board with the majority of the documents in English which she cannot read or understand without translation or legal representation which she argues as procedurally unfair to her in her appeal to the Board.

14.While it is accepted that the Applicant cannot read or understand English and without legal representation in her appeal before the Board, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board she never raised any such issue or requested the Adjudicator for further time or assistance as regard the translation of those documents, while she was also able to properly and fully present her case to the Board with the assistance of an Indonesian interpreter without any problem. As such I do not find any merits in this complaint of the Applicant either.

15.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 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.

16.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.

17.Moreover, the Applicant recently filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved that she no longer has any fear of returning to Indonesia.

18.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 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