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HCAL 257/2022
[2022] HKCFI 1677
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 257 of 2022
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Indah-Ayu-Yulianingsih |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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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:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 27-year-old national of Indonesia who last arrived in Hong Kong on 21 July 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 26 November 2021 or within 14 days of its early termination, but on 7 September 2021 she was arrested by police for making a false statement to the Immigration department for which she was subsequently convicted and sentenced to prison for 4 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 father’s creditors over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Village Prampelan, Waru Baki, Sukoharjo, Central Java, Indonesia where her father worked as a farmer, and in 2014 he was diagnosed with a heart problem for which he borrowed money from various local loan sharks for the medical expenses.
3. In 2017 the Applicant came to Hong Kong to work as a foreign domestic helper so as to assist her father with his loan repayments, but he soon died from his illness without paying off his loans.
4. In July 2019 when the Applicant returned to her home village in Indonesia for holiday, she was threatened by her father’s creditors to repay her father’s debts, and when she was unable to do so, they beat her with a wooden stick and threatened to kill her if she failed to remit money to them from her employment in Hong Kong.
5. Upon returning to Hong Kong to resume her employment, the Applicant did not do as demanded by those loan sharks who then made threatening phone calls to her, and after she was released from prison for her offence of making a false statement to the Immigration Department, she was afraid of being killed by those loan sharks if deported back to Indonesia, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 4 January 2022 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”).
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 those loan sharks upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that her problems with them were private monetary disputes 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 part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for those loan sharks to locate her.
8. On 14 January 2022 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 11 February 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 1 March 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board accepted the Applicant’s claim of fear of harm from her father’s creditors over her failure to repay his outstanding loans but found that they were private monetary disputes between them without any official involvement that state/police protection would be available to the Applicant 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 that her claim for non-refoulement protection failed on all applicable grounds.
10. On 25 April 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking was given in her Form, and in her supporting affirmation of the same date she just stated that she is not satisfied with the decision because “it is away from facts and reality” and that “there is no transparency with the decision” but without providing any further details or particulars or elaboration as to how 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 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.
11. 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.
12. In the Applicant’s case, the fact is that it has also been correctly 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.
13. 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.
14. 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 6th day of June 2022
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(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 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 6th June 2022
Indah-Ayu-Yulianingsih
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 6th June 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 19712/22/1/113/I2506
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2241/21 (formerly RBCZ 5000317/21)(T1I86)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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