Salmuati v. Torture Claims Appeal Board

HCAL 392/2021

[2024] HKCFI 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 392 OF 2021

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 48-year-old national of Indonesia who had since 2003 been permitted to work in Hong Kong as a foreign domestic helper, but was arrested by police on 7 July 2020 for making false representations to an immigration officer, for which she was subsequently convicted and sentenced to prison for 4 months, and upon her discharge from prison in October 2020 and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts.  

2.The Applicant was born and raised in Karang Gadung, Petanahan, Kebumen, Jawa Tengah, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.As her husband was a farmer with little income, the Applicant in 2003 started to come to Hong Kong to work as a foreign domestic helper to help support their family.

4.In 2017 she borrowed a loan from a local money-lender in her home district in Indonesia to help her husband to start his own business, with the loan to be repaid by 12 monthly instalments which her husband promised to do from his business income, but later when his business went bankrupted and was unable to repay the loan, the money-lender in 2018 sent men to beat him and threatened to kill the Applicant should she return to Indonesia.  

5.In July 2020 the Applicant was arrested in Hong Kong for making a false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 4 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, as she was afraid to return to Indonesia, she therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 November 2020 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 21 December 2020 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 him being harmed or killed by her creditor and followers upon her return to Indonesia as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary dispute between the Applicant and her creditor 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 of more than 1.8 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 creditor to locate her.

8.On 4 January 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 25 February 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 March 2021 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 creditor over her outstanding debts but found no evidence of any real intention of her creditor to seriously harm or kill her, and that in any event it was a private money 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 that her claim for non-refoulement protection failed on all applicable grounds.    

10.On 19 March 2021 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, and in her supporting affirmation of the same date she just repeated her claim as before with bare assertions that the Board rejected her claim without any proper inquiry or careful understanding of her situation but without providing any further details or particulars or elaboration as to how it was so, nor did she put forward any proper ground for her intended challenge.  

11.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 or any merits in her intended application.

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 correctly 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 5 January 2024 through her lawyers requested to withdraw and discontinue her application but without providing any reason or explanation therefor.  

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 request to withdraw, I accordingly dismiss her leave application and direct that the scheduled hearing on 16 January 2024 for her application be vacated.

Dated the 12^th day of January 2024

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