Case Document

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HCAL 1865/2019

[2024] HKCFI 2896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1865 OF 2019

BETWEEN
	Enoriani	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 the Applicant being absent 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 44-year-old national of Indonesia who last arrived in Hong Kong on 1 October 2009 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 1 October 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 11 April 2010, she did not depart and instead overstayed, and was arrested by police on 26 July 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor for refusing to marry him in settlement of her father’s debts, 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 Surubaya, East Java, Indonesia. After leaving school she worked as a domestic helper in Singapore before coming to Hong Kong in 2004 to work as a foreign domestic helper.

3.In about 2000 she was informed by her father that he was having difficulty repaying a loan which he had borrowed from a local money-lender for his medical expenses many years ago, and for which he had been repaying by instalments with interests for a long time, but as he was getting old with less and less income that he was having difficulty keeping up with his loan repayments, and for which his creditor had suggested that the Applicant should marry him in settlement of the debts, but to which the Applicant refused.

4.Since coming to Hong Kong to work as a foreign domestic helper, the Applicant kept receiving telephone calls from her father that his creditor had been pressing his marriage proposal for her to marry him, and even made threats against her if she refused to do so, and so after her last employment was prematurely terminated on 11 April 2010, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her arrest by the police 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 14 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 18 January 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 found no substantial grounds for believing that there will be any real and substantial risk of her being ill-treated by her father’s creditor upon her return to Indonesia due to the absence of any past ill-treatment from him, that there is no evidence of any real intention of him to harm her other than to press her to marry him, that in any event it was a private monetary dispute between her father and his 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 260 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 father’s creditor to locate her.

7.On 31 January 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 15 February 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of pressure from her father’s creditor to marry him in settlement of her father’s debts but found that any risk of any ill-treatment from the creditor arose from a private monetary dispute between her father and his creditor 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 father’s creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.On 4 July 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 she is not satisfied with the decision but without putting forth any proper ground for her intended challenge, nor did she subsequently attend the scheduled hearing of her application without any explanation. 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.

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 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.

12.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.

13.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 24^th day of October 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 October 2024 Enoriani 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 October 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 10106/18/1/379/I1045 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3500/17 (formerly RBCZ 10784/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)