Case Document

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HCAL 1775/2019

[2024] HKCFI 2289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1775 OF 2019

BETWEEN
	Karsih	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;

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 6 June 2009 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 when her last employment was prematurely terminated on 20 August 2009, she did not depart and instead overstayed, and was arrested on 17 February 2011, for which she was subsequently convicted and sentenced to prison for 3 months, during which she raised a torture claim to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their domestic disputes, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Desa Karang, Kandri, Sub-district Sugihan, District Cilacap, Central Java, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home district.

3.During the marriage her husband was abusive towards her by hitting her at will, and to avoid such abuses she in 2001 went to Taiwan to work as a domestic helper before coming to Hong Kong in December 2008 to work as a foreign domestic helper.

4.Shortly thereafter in early 2009 her husband called her on the phone demanding her to remit money to him in Indonesia to help him to repay his debts, which she did every month, but later when her last employment was prematurely terminated in August 2009 and that she was unable to remit any more money to her husband, and to which he threatened to kill her, the Applicant was therefore afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her subsequent arrest she then raised her torture claim, and after it was rejected she sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 2 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

6.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 upon her return to Indonesia as low 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 other than to press her for money to repay his debts, that in any event it was a private monetary or domestic dispute between the 2 of them 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 261 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.

7.On 7 December 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 6 May 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 June 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.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 over their domestic disputes that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real intention of her husband to seriously harm or kill her other than to press her to give him money to repay his debts, and that in any event it was a private domestic or monetary dispute between the 2 of them only 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 by her husband that her claim for non-refoulement protection failed on all applicable grounds.

9.On 26 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1) That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public sense or the result of procedural errors or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated that the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to her home country;

(6) That the Adjudicator rejected the Applicant’s claim without any proper inquiry and without carefully understanding her situation by touring her home country and asking those familiar with her case what real danger she would face if returned there; and

(7) That the hearing bundle for her appeal was given to her just a few days before her appeal hearing before the Board with the majority of the documents in English that there was insufficient time for her to prepare for her appeal due to her limited English skill and unrepresented that it was procedurally unfair on the part of the Board.

10.These are however just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were simply hearsay or outdated, or how did the Adjudicator fail make proper inquiry of her claim. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.As for her assertion that the hearing bundle for her appeal was given to her late and just a few days before her appeal hearing before the Board, the Applicant failed to provide any documentary evidence to corroborate her assertion, and that even if the hearing bundle were indeed late, the Applicant should be well familiar with the majority of the documents such as her own NCF or the record of her screening interview which had in fact already been provided to her lawyer from DLS during her screening process before the Director, and that the Applicant never raised any issue to the Board over the hearing bundle during her appeal hearing when she was able to make her representations about her claim without any problem and with the assistance of an interpreter. As such I do not find any merits in this complaint of the Applicant either.

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 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 5^th day of September 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 5 September 2024 Karsih 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 5 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14759/18/12/116/I1576 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 40550/18 (formerly RBCZ 11881/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)