AGUSTINNA HARDIANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1010/2018

[2021] HKCFI 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1010 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Indonesia who arrived in Hong Kong on 17 February 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 17 February 2014 or within 14 days of its early termination, and when the contract was extended to 20 February 2015 but when it was prematurely terminated on 25 July 2014, the Applicant did not depart and instead overstayed, and upon her subsequent arrest by the police and was referred to the Immigration Department on 20 August 2014 for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor for her father’s failure to repay his loan. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tanjunganom Sub-district, Nganjuk, East Java Province, Indonesia. After leaving school she remained living with her parents in her home village where her father was a construction worker and her mother a housewife.

3.  In 2010 her father had an accident while at work and became temporarily paralyzed for which he required long term therapy and medical treatments, and to meet such expenses as well as those of his family, her father borrowed a loan from the local money-lender repayable by monthly instalments with the help of his younger brother.

4.  However, in 2011 when his younger brother ceased his financial assistance due to his own difficulties, and when her father was unable to make any loan repayment, his creditor started to send his men to threaten her father and the family, and had on one occasion beaten him and damaged his things at home while demanding that the Applicant should repay the loan for her father.

5.  As a result and in order to help her father to repay his loan, the Applicant came to Hong Kong in February 2012 to work as a foreign domestic helper so as to be able to remit her monthly salary to her father for his loan repayment, but when her employment contract was subsequently terminated in July 2014 and that she was unable to make any further remittance to her father, she did not depart for Indonesia as she was fearful of harm from her father’s creditor and 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 1 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 19 July 2016 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  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 father’s creditor and his men 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 on the part of her father’s creditor to harm her other than to press her to repay her father’s loan, that it was in any event a private monetary 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 reasonable internal relocation alternatives are available in Indonesia with a large population of 255 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 part of Indonesia 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.

8.  By a Notice of Further Decision dated 4 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal for which was filed on 1 August 2016, and for which she attended an oral hearing on 22 February 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 9 May 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board had some doubt over the credibility of the Applicant’s claim but did not exclude the possibility that her father may have indeed been in debt and that she came to work in Hong Kong to assist her father with his loan repayment, but found in the absence of any evidence of state or official involvement  in her claimed fear of harm from his creditor that state or police protection would be available upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area 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.

11.  On 4 June 2018 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 merely repeated her claim that her life would be in danger if refouled to her home country without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error in 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 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 decision that the risk of harm in her claim 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 these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave 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