Partini Tri Handayani v. Torture Claims Appeal Board

HCAL 508/2022

[2024] HKCFI 2028

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 508 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
	cconsideration 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 30 August 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 18 March 2017 or within 14 days of its early termination, but after completing her employment contract on 18 March 2017, she did not depart and instead overstayed, and was arrested more than 3 years alter on 21 October 2020 for which she was subsequently convicted and sentenced to prison for 3 months, during which she raised a non-refoulement claim for protection to the Immigration department on the basis that if she returned to Indonesia she would be harmed or killed by her husband and/or family and/or fellow Muslim villagers in her home village over her conversion of her religion from Islam to Christianity.  

2.The Applicant was born and raised as a Muslim in Tulungagung, Jatim, Indonesia.  After leaving school she married her Muslim husband as arranged by her family, and raised a family with a daughter in her home district.

3.Soon she found her husband to be an alcoholic and when drunk would abuse her by hitting her at will, causing her injuries and distress.

4.To avoid his continued abuses, the Applicant in 1999 went to work in Jakarta as a domestic servant, during which she was influenced by her Christian employer to convert her religion from Islam to Christianity by receiving her baptism in a church in 2001.

5.In 2002 she returned to her home village, but when her husband found out about her religious conversion, he became furious and beat her violently, and to avoid his abuses, she left home again to travel to Jakarta and other cities to work as a domestic servant.

6.In 2005 she started coming to Hong Kong to work as a foreign domestic helper, and in 2007 when she returned to Indonesia for holiday during which she stayed at her mother’s home, but when her mother and siblings found out about her religious conversion into Christianity, they also became furious at her for bringing shame to their Muslim family and drove her out of their home, and so the Applicant returned to Hong Kong to continue with her employment as a foreign domestic servant.  

7.However, when her last employment was prematurely terminated in March 2017, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest in October 2020, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 January 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

8.By a Notice of Decision dated 24 February 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”).

9.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 family or Muslim villagers 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, that in any event it was a private religious dispute between 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 freedom of religions is protected by law in Indonesia and that if necessary reasonable internal relocation alternatives are also available within the country 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 Bali or Palembang where it would be difficult if not impossible for anyone to locate her.

10.On 8 May 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 November 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 27 April 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.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 and/or her family and/or fellow Muslim villagers from her home village over her religious conversion that caused her to overstay in Hong Kong to seek protection, which was further undermined by her failure to raise her claim upon first arrival in Hong Kong until more than 3 years after her overstay and only upon her arrest, and that in any event even if her claimed risk were real that there was no reliable evidence of any real intention of any of them to seriously harm or kill her and that such risk arose from some private religious dispute 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 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.

12.On 21 June 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 in which she just asserted that the Board was wrong and had made many mistakes but without providing any further details or particulars of elaborations as to what such mistakes were or in what way was the decision wrong, nor was she able to do so at the hearing of 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.

13.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.

14.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 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.

15.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.

16.For all 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 8^th day of August 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