Sumaryani v. Torture Claims Appeal Board

HCAL 1804/2019

[2023] HKCFI 3206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1804 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 54-year-old national of Indonesia who had been working in Hong Kong as a foreign domestic helper since 1998 but when her last employment contract was terminated on 13 December 2012 and her visa expired on 17 January 2013, she did not depart and instead overstayed in Hong Kong, and more than 4 years later on 29 March 2017 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 abusive husband and/or his elder brother for failing to give them money for their uses. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Bendungan, Kulon Progo, Yogyakata, Indonesia. After leaving school she married her husband, and raised a family with 2 children in her home district.

3.However, as her husband was frequently out of jobs, and in order to support the family the Applicant in 1989 went to work in Singapore as a domestic helper to remit money to her husband for the support of their family, and in 1998 she started to come to Hong Kong to work as a foreign domestic helper, returning to her home in Indonesia only for holidays but during which both her husband and his elder brother would demand for more money for their uses, and when she was unable to meet their demands, they would threaten to harm or kill her.

4.In 2010 the Applicant started to send money from Hong Kong only to her son instead of her husband as she did not trust that he would properly use the money on the family, for which her husband was furious and made death threats against her, and so when her last employment was terminated in December 2012, she was afraid to return to Indonesia and instead overstayed in Hong Kong, and more than 4 years later in March 2017 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 November 2017 and attended screening interview before the Immigration Department with legal representation.             

5.By a Notice of Decision dated 17 January 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of her claim due to her failure to raise it until more than 4 years after her overstay in Hong Kong, that even if true that the level of risk of harm from her husband or his brother upon her return to Indonesia is assessed as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her, that these were private monetary disputes between them within the 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 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 husband or his brother to locate her.

7.On 29 January 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 1 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of threats from her husband and his brother over her failure to meet their demands for money for their use but found no evidence of any real intention of either of them to seriously harm or kill her, and that in any event they were private monetary disputes between them within the 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.    

9.On 28 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. 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.

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 vDirector of Immigration [2018] HKCA 524.

11.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 vJenkins & Anor [2013] 1 HKC 526.                

12.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.

13.Moreover, the Applicant recently on 31 October 2023 filed an affirmation requesting to withdraw her application as she has no more problem returning to her home country.  

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

Dated the 12^th day of December 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