Siti Nursidah v. Torture Claims Appeal Board

HCAL 2066/2019

[2024] HKCFI 1587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2066 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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 4 April 2013 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 on 8 April 2014 her employment was terminated after she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 6 months. Upon her discharge from prison 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 abusive husband over their marital disputes.

2.The Applicant was born and raised in Desa & Kelurahan Kedung Asri, Kecamatan Gemuh, Kabupaten Kendal, Jawa Tengah, Indonesia. After leaving school she went to Saudi Arabia to work as a domestic servant until 2002 when she started to come to Hong Kong to work as a foreign domestic helper.

3.In 2006 she returned to Indonesia to marry her husband and to live together with her mother in her home village. However, soon she found her husband to be of hot temper and abusive towards her by pushing and slapping her around, and that he would often demand money from her for his use, and if she refused he would beat her violently.

4.To avoid such abuses the Applicant in 2007 returned to Hong Kong to resume working as a foreign domestic helper and to remit most of her salaries to her husband for his uses including to repay his many debts.

5.However, after her last employment was terminated in April 2014 and that she was subsequently put in prison for theft, and as she was without income to remit any money to Indonesia, her husband then made threats against her that he would kill her when she returned to Indonesia, and so she was afraid to return and raised her non-refoulement claim for protection in Hong Kong, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 February 2019 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 February 2019 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 or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her over what were essentially private domestic disputes between the 2 of them 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 to locate her.

8.On 7 March 2019 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 14 June 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to want to remain in Hong Kong for protection, that even if her account of events that occurred between her and her husband in Indonesia were true that there was no reliable evidence of any real intention of her husband to seriously harm or kill her, and that in any event it was a private domestic 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 to negate any risk of harm from her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.On 19 July 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, nor did she file any affirmation in support of her application, and at the hearing of her application when she was invited to put forward grounds for her intended challenge, she was unable to do so other than just stating that she would like to remain in Hong Kong. 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.

11.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.

12.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.Furthermore, the fact is that it has also been established by the Director in his decision 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, a decision also agreed and confirmed by the Board, 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.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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 13^th day of June 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