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HCAL 1761/2019
[2022] HKCFI 2891
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1761 of 2019
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Nuraini alias Aini Nur alias Nur Aini |
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:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 2 January 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 January 2016 or within 2 weeks of its early termination, but when her employment was prematurely terminated on 14 March 2014, she did not depart and instead overstayed in Hong Kong, and on 15 May 2014 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for failing to send him money to repay his debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Jember, Indonesia. After leaving school she worked in the factory, and in 1998 she married her husband and raised a family with 2 children in her home district.
3. However, she soon found her husband to be a habitual drinker, a gambler and a womanizer, and when drunk he would be abusive and violent towards her by beating her at will, and would often demand money from her to repay his numerous debts.
4. To avoid further abuses from her husband, the Applicant in 2011 started to come to work in Hong Kong as a foreign domestic helper, and from her income she was required to remit money to her husband in Indonesia from time to time.
5. In 2012 she returned to Indonesia for 2 months to divorce her husband before returning to Hong Kong thereafter to resume her employment when she ceased all contact with him, but when her last employment was prematurely terminated in March 2014, she was afraid to return to Indonesia, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 28 September 2018 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 found no substantial grounds for believing that there will be any real and substantial risk of being harmed or killed by her former husband upon her return to Indonesia due to the absence of any past ill-treatment from him since their divorce in 2012, that in any event it was a private domestic or monetary dispute between them during their marriage before their divorce and 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 260 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her former husband to locate her.
8. On 21 December 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 8 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 June 2019 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 former husband for failing to send him money to repay his debts prior their divorce but found no evidence of any further threats from him after their divorce in 2012 when she ceased all contact with him, and that in any event it was a private domestic or monetary dispute between them 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 for her to move safely to other part of the country without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.
10. On 25 June 2019 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 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 eth 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 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. 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. Furthermore, the Applicant recently on 22 August 2022 filed an affirmation requesting to withdraw her application as all her problems have been resolved and that she wants to return to her home country as soon as possible.
15. In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that she has no more problem returning to her home country, I accordingly dismiss her leave application.
Dated the 20th day of September 2022.
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( Allen LEE )
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 20 September 2022
Nuraini alias Aini Nur alias Nur Aini
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 20 September 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 15372/19/1/245/I1619
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3556/18 (formerly as RBCZ 10448/18)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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