Sri-wulan Alias Sri, Wulan Alias Wulan, Sri Alias Mujiati v. Torture Claims Appeal Board

HCAL 738/2024

[2024] HKCFI 1719

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 738 OF 2024

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:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 47-year-old national of Indonesia who first arrived in Hong Kong in 2005 to work as a foreign domestic helper until 17 December 2012 when she returned to Indonesia after the termination of her last employment, and in October 2014 she applied under a different identity and was allowed to work in Hong Kong as a foreign domestic helper, but in October 2023 she was arrested for making a false representation for her application to work as a foreign domestic helper for which she was subsequently convicted and given a suspended imprisonment, and when she 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 husband’s creditor over her husband’s debts.

2.The Applicant was born and raised in Kertomulyo, KEC. Margoyoso, Pati, Jawa Tengah, Indonesia. After leaving school she married her husband, and in 2001 she went to Singapore to work as a domestic helper until 2005 when she started to come to Hong Kong to work as a foreign domestic helper.

3.In 2006 while she was working in Hong Kong, her husband started a grocery store business with the help of a loan borrowed from a local money-lender to be repaid within 3 years with monthly interests payments which he managed with income from his grocery store.

4.However, in 2007 her husband started to default with his loan repayments due to poor business of his grocery store which was eventually closed down in 2008, and as a result his creditor sent men to threaten her husband and parents and also vandalized their home, and in 2012 when she returned to Indonesia, she was also threatened by her husband’s creditor, and as she became fearful for her safety and in order to avoid the threats from her husband’s creditor, she applied to return to Hong Kong to work as a foreign domestic helper, but when her application was unsuccessful, she later applied again under a different identity, and was subsequently allowed to do so when she then returned to Hong Kong in October 2014 to again work as a foreign domestic helper.

5.In October 2020 she was informed by her father that the money-lender’s followers had continued to make threats against her husband to repay the loan, and on a recent occasions beat him badly with wooden sticks that her husband suffered injuries to his back and had to be taken to the hospital when he then suffered a stroke and eventually died in the hospital, whereupon his creditor turned to look for the Applicant with threats for her to repay her deceased husband’s debts.

6.Henceforth later in October 2023 when she was arrested for making a false representation for her last application to work as a foreign domestic helper under a different identity and was subsequently 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 15 December 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 5 January 2024 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”).

8.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 deceased husband’s creditor and followers upon her return to Indonesia 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 them to seriously harm or kill her other than to press her to repay her deceased husband’s debts, that in any event it was a private monetary dispute between her deceased husband and his creditor only 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 279 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 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 deceased husband’s creditor to locate her.

9.On 15 January 2024 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 3 April 2024 before the Board during which she did not give any further evidence but did answer questions raised of her claim by the Adjudicator for the Board. On 12 April 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.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 deceased husband’s creditor that caused her to overstay in Hong Kong to seek protection, that in any event there was no reliable evidence of any real intention of his creditor to seriously harm or kill her, and that in any event it was a private monetary dispute between her deceased husband and his creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her deceased husband’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.On 9 May 2024 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 in which she just repeated her claim as before but without putting forth 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.

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 established by both the Director and the Board in their respective decisions 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.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 2^nd day of July 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