Erna Diana v. Torture Claims Appeal Board

HCAL 2314/2019

[2024] HKCFI 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2314 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 / 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 37-year-old national of Indonesia who last arrived in Hong Kong on 15 January 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 15 January 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 September 2014, she did not depart and instead overstayed, and almost one year later on 24 August 2015 she surrendered to the Immigration Department and raised a

2.The Applicant was born and raised in Banyuwangi, East Java, Indonesia where her grandfather was a rich man in her home village with 2 wives and 3 sons, i.e. the Applicant’s father born to the first wife, and his 2 step-brothers born to the second wife.

3.In about 1986 when the Applicant was 12 years old, her mother left their family and subsequently divorced her father who later married another woman who became the Applicant’s step-mother, but who did not treat her well and had frequently abused her at home.   

4.In 2000 the Applicant’s grandfather passed away and left a will giving the bigger share of his estate to the Applicant’s father, which had since led to numerous conflicts between him and his 2 step-brothers over the distribution of the grandfather’s estate.

5.On one such occasion in August 2002, the step brothers together with some other villagers came to the Applicant’s home to attack her father and step-mother, and when the Applicant who was then 16 years old tried to intervene, they also beat her by slapping and punching her that she suffered cuts and bruises all over her body.  

6.After the incident the Applicant became traumatized and was often fearful for her safety, and with the constant domestic abuses by her step-mother, she eventually made up her mind to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she did in 2007 when she arrived in Hong Kong to start her first employment, but when her last employment was prematurely terminated 18 September 2014, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and on 24 August 2015 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 20 August 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

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 step-uncles and/or her step-mother 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 intention of any of them to seriously harm or kill her over what were essentially domestic disputes within her family and that it is not accepted that there would still be any adverse interest of anyone in her after all these years since she left the country in 2007, that in any event in the absence of 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 anyone to locate her.

9.On 31 August 2018 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 27 June 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 1 August 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s evidence of disputes within her family over her grandfather’s estate and of ill-treatments from her step-mother while she was small, but found no reliable evidence of any intention of anyone within the family to harm or kill her over what were essentially private disputes between her father and his step-brothers and domestic issues between her and her step-mother but whom she had had no further contact since 2007 that it is not accepted after all these years that she would still face any risk of harm from any of them, and that in any event in the absence of 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.    

11.On 12 August 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 in which she just stated that her claimed risk is real and that she does not want to return to her home country 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.

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 risks of harm in her claim if real are localized ones 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.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.Moreover, the Applicant recently on 21 June 2024 in writing requested to “cancel” her application as it is now safe for her to return to her home country.

16.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 safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 23^rd 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