Case Document

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HCAL 351/2023

[2024] HKCFI 2565

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 351 OF 2023

BETWEEN
	Iva Dewi Sekar Sari	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 14 January 2021 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 January 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 3 February 2021 she did not depart and instead overstayed, and was arrested by police on 25 May 2021. After she was referred to the Immigration Department for investigation, 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 step-father for refusing to give him money to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Demak Dampit, Dampit Kab, Malang, East Java, Indonesia where her mother remarried after her father passed away, but that her step-father always mistreated her by insisting that she should quit school early to work to support the family.

3.Eventually the Applicant in 2014 came to Hong Kong to work as a foreign domestic helper, and in 2016 her step-father started to make threatening phone calls to her demanding for money from her to enable him to repay his debts, and when she refused, he then threatened to kill her when she returned to Indonesia, and so after her last employment was prematurely terminated on 3 February 2021, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 7 January 2022 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”).

5.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-father upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her step-father, that there is no evidence of any real intention of her step-father to seriously harm or kill her other than to press her for money, 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 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 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 step-father to locate her.

6.On 18 January 2022 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 24 November 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 February 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found the Applicant’s claimed problem with her step-father was plainly a private monetary dispute between the 2 of them only without any official involvement that state or police protection as well as support and assistance from various governmental departments and NGOs would be available to the Applicant upon her return to Indonesia to negate or minimize such risk, and concluded that her claim for non-refoulement protection failed on all applicable grounds.

8.On 8 March 2023 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, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)   That the Adjudicator did not consider her claim properly and just dismissed it without taking any time to consider the danger that her life would be in her home country;

(2)   That the Adjudicator unreasonably refused to allow her to submit her supporting documents because they had not been properly translated and also refused to give her time to arrange for their translation;

(3)   That the interpreter was not helpful and was impatient with her for taking too much time with her evidence.

9.These are however all just some bare and vague assertions of the Applicant without any relevant or necessary 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 how did the Adjudicator fail to properly consider her claim or fail to allow her to submit her supporting documents which even up to now that she has not identified any of them or to produce them as evidence, or how was the interpreter being unhelpful when the record shows that the Applicant was able to make her full representations to the Board without any difficulty. 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.

10.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.

11.In the Applicant’s case, the Board rejected her claim essentially on its proper findings based on her own evidence given to the Board that it was plainly a monetary dispute between her and her step-father on the factual basis of even her own case without any official involvement that any real risk arising therefrom would be negated by state or police protection available to the Applicant upon her return to Indonesia. As such, and in the absence of any error of law 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 to challenge the findings of the Board.

12.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s 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, a decision also agreed and confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & 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 recently on 9 August 2024 filed an affirmation requesting to “close” her case as she now wants to return to Indonesia.

15.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, I therefore refuse to grant leave and accordingly dismiss her application.

Dated the 24^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 24 September 2024 Iva Dewi Sekar Sari 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 24 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 19745 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2321/21 (formerly RBCZ 11153/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)