Case Document

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HCAL 1474/2022

[2024] HKCFI 1834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1474 OF 2022

BETWEEN
	Wati Siti Syarifa alias Siti-Syarifa-Wati alias Siti Syarifa Wati	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 32-year-old national of Indonesia who last arrived in Hong Kong on 11 March 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 7 February 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 8 October 2020, she did not depart and instead overstayed, and on 25 January 2021 she surrendered to the Immigration Department and 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 unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Toli Toli, Central Sulawesi Province, Indonesia. After leaving school she married her husband, and in 2014 she first came to Hong Kong to work as a foreign domestic helper, and subsequently divorced her husband.

3.In 2019 she returned to her home district in Indonesia for holiday, during which she decided to build her own home with the help of a loan borrowed from a local money-lender to pay for the expenses of the construction, and for which she was required to repay her loan within 4 years and to make its monthly interest payments from her salaries earned in Hong Kong.

4.However, after her last employment was prematurely terminated in October 2020, she was without income and hence was unable to make her loan’s monthly interests payments, whereupon her creditor came with his followers to her brother’s house in her home district to make threats against her, during which his men also attacked her brother, and warned that if the Applicant still failed to repay her debts, they would kill her when she returned to Indonesia.

5.As a result the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 October 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 2 November 2021 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 risk of harm from her creditor and followers 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 them to seriously harm or kill her apart from pressing her to repay her debts, that in any event it was a private monetary dispute between her and her 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 275 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 creditor to locate her.

8.On 8 November 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing on 13 May 2022 before the Board without any explanation or any response to the Board’s subsequent request for explanation as to her failure to attend the hearing, nor did she subsequently make any request for another oral hearing for her appeal. In the circumstances the Board proceeded to deal with her appeal in her absence and on paper based on her evidence provided to the Director and as contained in the hearing bundle before the Board. On 4 November 2022 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 unpaid debts but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary 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 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.On 12 December 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 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: ReLakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst vDirector of Immigration [2018] HKCA 524.

12.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 vJenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant on 4 March 2024 filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved and that it is now safe for her to return to Indonesia.

15.In the premises, and 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, I accordingly dismiss her leave application.

Dated the 23^rd day of July 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 23 July 2024 Wati Siti Syarifa alias Siti-Syarifa-Wati alias Siti Syarifa Wati Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23 July 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19166 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1809/21 (formerly RBCZ 11006/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)