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HCAL 950/2018
[2020] HKCFI 2395
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 950 of 2018
BETWEEN
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Rusyatiningsih Nimun |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 17 February 2005 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her contract was prematurely terminated on 16 April 2006, she did not depart and instead overstayed and was arrested by police on 20 November 2013, for which she was subsequently convicted and was sentenced to prison for 6 months. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her parents’ loan creditor for refusing to marry him as repayment of their loans. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Village Banjaragung, Sub-district Tempurejo, Jember Regency, East Java, Indonesia. After leaving school she worked as a part-time domestic helper in her home district, and in 1994 started to work as a foreign domestic helper in Hong Kong, returning home to visit her parents in her home village for two weeks at the end of each of her employment contracts.
3. In February 2005 during her visit of her parents in Indonesia, she was told by them that they owed their creditor Mahmud a lot of money which they would not be able to repay, but as Mahmud would agree to marry her in lieu of their loans repayment, they therefore insisted that she did so and would not allow her to return to Hong Kong, and it was only after she was able to put up an excuse that she would like to work for one more year in Hong Kong with a promise to return to Indonesia next year for the marriage that she was allowed to leave for Hong Kong.
4. However, when her last contract was prematurely terminated in April 2006, and as she was afraid of returning to Indonesia to marry Mahmud, she therefore overstayed in Hong Kong, and upon her subsequent arrest by the police and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 9 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
5. By a Notice of Decision dated 15 February 2017 the Director of Immigration (“the 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”).
6. 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 Mahmud upon her return to Indonesia as low due to the absence of any past ill-treatment from him, that after all these years it is doubtful that Mahmud would still have any interest in the Applicant, that in any event in the absence of 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 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 such as Jakarta or Bali where it would be difficult if not impossible for Mahmud to locate her.
7. On 27 February 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 25 January 2018 before the Board during which she just confirmed her claim as contained in the documents previously submitted and claimed to have nothing further to add to her evidence. On 29 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
8. In its decision the Board found even on her own case that the Applicant has never been subjected to any threats or ill-treatment by her parents’ creditor, that there is no reliable evidence of any intention on the part of the creditor to harm her, that in any event with state/police protection available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by her parents’ creditor that her claim for non-refoulement protection failed on all applicable grounds.
9. On 28 May 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 stated that the Board’s decision is unfair and unreasonable without providing any particulars or elaborations why it is so, nor did she request any oral hearing for her application. 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 finding of the Board.
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 decisions 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.
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 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.
Dated the 23rd day of September 2020.
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(NG Hang-yin)
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 his solicitors must: |
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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)). |
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Sent to the Applicant on 23rd September 2020
Rusyatiningsih Nimun
Applicant’s ref. no.:
Nil. |
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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 23rd September 2020
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 6331/17/2/330/I639
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 3110/16
(Formerly RBCZ 3000175/14) [T4S53]
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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