RIKA AGUSTINA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1702/2021

[2024] HKCFI 3149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1702 OF 2021

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;

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 8 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 9 November 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 March 2019 she did not depart and instead overstayed, and was arrested on 22 July 2019 for which she was subsequently convicted and sentenced to prison for 8 weeks, and upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband over their monetary dispute. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Way Jepara Sub-district, Lampung District, Lampung Province, Indonesia. After leaving school she worked as a domestic helper in Jakarta, got married and raised a family with a daughter in her home district.

3.  Soon after their marriage the Applicant discovered that her husband was addicted to illegal drugs and would often demand money from her for his drug use, and when she was unable to do so, he would be abusive towards her by hitting her at will.

4.  In order to satisfy her husband’s demands the Applicant in March 2015 started to come to Hong Kong to work as a foreign domestic helper and to remit money regularly to him in Indonesia for his use.

5.  However, in 2017 she discovered that her husband had neglected the care of their daughter, and so the Applicant arranged for her to be placed in the care of her in-laws, and instead of continue to remit money to her husband for his drug use, she sent the money to her in-laws for their care of her daughter.

6.  As a result her husband became furious with her and threatened to kill her when she returned to Indonesia, and so when her last employment was prematurely terminated in March 2019, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 October 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 11 November 2019 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”).

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 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 to seriously harm or kill her other than to press her for money, that in any event it was a private 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 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 husband to locate her.

9.  On 17 November 2019 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 5 October 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 29 November 2021, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from her husband over their disputes that caused her to overstay in Hong Kong to seek protection, but found no reliable evidence of any real intention of her husband to seriously harm or kill her other than to press her for money, and that in any event it was a private monetary dispute between her and her husband 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 areas 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.

11.  On 16 December 2021 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 to which she just attached a copy of the decision but without putting forward 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 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.  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 26 August 2024 filed an affirmation requesting to withdraw her application but without providing any further explanation or reasons for her request apart from stating that her family is waiting for her to return to Indonesia.

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

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