INDAYATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2672/2018

[2021] HKCFI 2548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2672 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 47-year-old national of Indonesia who had since 2002 been permitted to remain and work in Hong Kong as a foreign domestic helper under a valid employment contract, but after the termination of her last employment contract and the expiration of her extended visa up to 17 October 2010 when she thereafter did not depart and instead overstayed, and upon her subsequent arrest by police on 23 May 2011 and was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband and/or his creditor for failing to assist him with his loans repayment, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She has since been released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jawa Timur, Indonesia. After leaving school she married her husband who was a factory worker, and raised a family with one son.

3.  In the late 1990s the Applicant went to work in Brunei as a domestic helper and remitted money to her husband to purchase a family house in their home district, which she continued to do so when she later came to Hong Kong in 2002 to work as a foreign domestic helper.

4.  In 2007 her husband asked her to remit more money to assist him in repaying his debts to his creditor, and as a result the Applicant returned to Indonesia to discuss the matter with her husband during which his creditor also came to demand that she assisted in repaying her husband’s debts to which she refused, and when she discovered that her husband had earlier pledged their house for his loans, she became furious and broke into a heated quarrel with him which led to her subsequent decision to divorce her husband after her return to Hong Kong for her employment, for which she instructed her family to hire a lawyer in Indonesia to deal with in her absence.

5.  After her return to Hong Kong in 2007, her husband continued to demand for money from her, and when she refused and told him about their divorce, her husband threatened to kill her when she returned to Indonesia.

6.  As a result the Applicant changed her telephone number and has since not heard from her former husband again, but as she was still fearful for her life, she therefore did not return to Indonesia after her last employment was terminated, she therefore overstayed in Hong Kong, and upon her arrest by the police she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 13 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 28 December 2017 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and did not accept that she will face any real and personal risk from her former husband or his creditor upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention on their part to harm her, that since 2007 she has had no further contact with either of them that after all these years it is doubtful that they would still have any adverse interest in her, that in any event it was 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 258 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 part of Indonesia away from her home district in large cities such as Surabaya or Jakarta where it would be difficult if not impossible for her former husband or his creditor to locate her.

9.  On 8 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 28 June 2018 before the Board during which she gave evidence and answered questions put to him by the Adjudicator for the Board. On 9 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found no evidence of any real intention on the part of the Applicant’s former husband or creditor to harm the Applicant or that she had been subjected to any ill-treatment by either of them in the past, that having lost any ties or contact with them since 2007 that it was not accepted that they would still have any interest in her after all these years, and in the absence of any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 26 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached a copy of the Board’s decision and her hearing bundle for her appeal before the Board but 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 of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions 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 the Director in his 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, a decision also 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.     

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