Siti Asiyah v. Torture Claims Appeal Board
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HCAL 1462/2019 [2024] HKCFI 413 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1462 OF 2019
Application for Leave to Apply for Judicial Review Following:
Order by Hon Fung J: Leave to apply for judicial review refused. Observations for the Applicant: 1.The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 26 November 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 26 November 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 30 April 2015, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 18 December 2015 and for which she was subsequently convicted and sentenced to prison for 4 weeks suspended by 3 years. She was referred to the Immigration Department for deportation but raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor over his outstanding debt. She was subsequently released on recognizance pending the determination of her claim. 2.The Applicant was born and raised as a Songgom Brebes, Jana Tengah, Indonesia and is single. After leaving school she went to work as a domestic helper in Taiwan and Indonesia before returning to coming to Hong Kong to work in 2014. 3.In the period between early 2013 to April 2013, whilst still living with her father, the Applicant believed that he has borrowed large sums of money from some local loan sharks when 4 debt collectors visited the Applicant’s home and demanded repayments and threatened to kill her if her father could not be found and his debts remained unpaid. At that time the Applicant felt scared as her father has already ran away from home. To avoid further contact with the debt collectors, the Applicant moved to Jakata and then Cilacap to work and receive domestic helper training before she could work overseas. Before departing for Hong Kong as a foreign domestic helper, the Applicant visited her home in Brebes and found that it was broken into but was not looted. The Applicant was not confronted or received any harm from anyone. 4.The Applicant secured an employment contract to work in Hong Kong but upon its premature termination on 30 April 2015, she overstayed in Hong Kong and was arrested and on 24 December 2015 convicted for breach of her conditions of stay. She was referred to the Immigration Department for deportation, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 October 2018[1] and attended screening interview before the Immigration Department with legal representation. 5.By a Notice of Decision dated 18 October 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 found no substantial ground for believing that she would be in danger of being harmed or killed by her father’s creditor or debt collectors upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that after all these years since she last left the country that it is doubtful that there would still be any adverse interest in her, that in any event it was a private monetary dispute between her father and 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 260 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 part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her father’s creditor or debt collectors to locate her. 7.On 29 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but considering that the Applicant was legally represented during her process which has been dealt with by the Director and the relevant materials before it, the Board decided not to hold any hearing and deal with her appeal on paper. On 16 May 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director. 8.In its decision the Board found that the Applicant’s claim of threats from her father’s creditor did not attain the minimum severity required to warrant protection as she has only received verbal threats twice[2] but never suffered any physical harm, that it was a personal loan[3] dispute without any state or 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 30 May 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 to which she just stated that the Board has made a determination without a hearing and attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. 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 v Director 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 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. 12.In the premises and 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.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application. Dated the 7th day of February 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 |
Cases cited in this judgment