Deva Kemala Saraswati v. Torture Claims Appeal Board

HCAL 894/2022

[2024] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 894 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 39-year-old national of Indonesia who last arrived in Hong Kong on 16 September 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 25 August 2020, she did not depart and instead overstayed, and was arrested on 19 November 2020 for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her husband or his creditors or the creditors of her father over their unpaid debts.

2.The Applicant was born and raised in Sumur Batu, Kemayoran, Indonesia. After leaving school she worked as a salesperson, and continued to reside with her parents in her home district.

3.One day in about 2000 her father left home and disappeared without any news, and in 2002 some men came looking for him claiming that he owned them money, and when they were unable to find him, they demanded the Applicant to repay her father’s debts, and after having made some payments to those men in 2002 and 2003, they then never returned.

4.In 2004 the Applicant married her husband and raised a family with 2 children in her same home district.

5.In 2008 her husband borrowed some loans from 2 creditors for his gambling and other uses, and to which he demanded that the Applicant acted as the guarantor which she did, but when he later failed to repay those loans, he demanded her to contribute which led to frequent quarrels between them during which her husband would beat her at will.

6.Eventually the Applicant was unable to tolerate the abuses and left her husband in 2010 by moving with her children and her mother to Bekasi, and in order to support her children, the Applicant in 2013 went to work in Taiwan as a domestic helper.

7.However, somehow her husband’s creditors found out about her place in Bekasi and came looking for her for repayment of her husband’s debts, and when they were unable to find her, they made threats against her to her mother that they would kill her when she returned to Indonesia.

8.In 2018 the Applicant started to work in Hong Kong as a foreign domestic helper, but when her last employment was prematurely terminated in August 2020, she was afraid to return to Indonesia, and so she overstayed in Hong Kong, and after her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 February 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 25 June 2021 the Director of Immigration (“The 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

10.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 or his creditor or the creditor of her father upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill her other than to press her for repayments of those debts, that in any event these were private monetary disputes between them without any official involvement that state 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 area away from her home district such as Jakarta where it would be difficult if not impossible for anyone to locate her.

11.On 12 July 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 23 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 July 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband or his creditors or her father’s creditors that caused her to overstay in Hong Kong for non-refoulement protection, and that in any event even if such risks were real that they arose from some private domestic or monetary disputes between 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 alternatives for her to move to other part of the country away from her home district without any risk of being located that her claim for non-refoulement failed on all the applicable grounds.

13.On 8 September 2022 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 her supporting affirmation of the same date to which she just attached a copy of the decision 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 merits or proper basis for her intended challenge.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

15.The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim even 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 on 9 February 2024 in writing requested to withdraw her application as she wants to return to her home country because it is now safe for her to do so.

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 that it is now safe for her to return to her home country, I accordingly dismiss her leave application and direct that the scheduled hearing be vacated.

Dated the 1^st day of March 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