DEWI ANITA SARI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1107/2022

[2024] HKCFI 804

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1107 OF 2022

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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Indonesia who arrived in Hong Kong on 11 August 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 11 August 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 15 December 2019, she did not depart and instead overstayed, and was arrested by police almost one year later on 2 November 2020. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Lampung Tengah, Kecamatan Bumi Naburg Ilir Dusun, Indonesia. After leaving school she worked as a domestic helper in Jakarta to make her living.

3.  In 2010 she intended to start her own restaurant business by borrowing a loan from a local money-lender with monthly interest payments until discharge of the loan, but instead of using the money to start her restaurant business, she agreed to her mother’s request to give the money to her sister for her education needs.

4.  As she did not have any income to make any interest payments or repay her loan or to support herself, the Applicant thereafter departed for Kuala Lumpur to work as a domestic helper, during which she was told by her family that her creditor had sent men to her home in Indonesia looking for her and making threats against her family, and in 2018 she then came to Hong Kong to work as a foreign domestic helper, but after her last employment was prematurely terminated on 15 December 2019, she was afraid to return to Indonesia and therefore 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 8 June 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 15 July 2021 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”).

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 her creditor and his men upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary dispute between the 2 of 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 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 areas of the country away from her home district in large cities such as Surabaya where it would be difficult if not impossible for her creditor to locate her.

7.  On 26 July 2021 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 October 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 September 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim upon her first arrival in Hong Kong until after her subsequent arrest by the police that it rejected her claim of having borrowed any loan or any threats from any creditor or that she would face any such risk if refouled to her home country, and that in any event even if such risk were real that it arose from some private monetary dispute between her and her creditor 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 alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 19 October 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  That the Board was in breach of procedural fairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  That the Board was in breach of procedural fairness in that its decision to refuse the Applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  That the Board was in breach of procedural fairness in failing to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board reached the wrong decision in assessing the Applicant’s claim without making proper inquiry or to have careful understanding of the her situation; and

(6)  That it was procedurally unfair for the Applicant to be provided with the hearing bundle only a few days before her appeal hearing before the Board thereby giving her insufficient time to prepare for the hearing due to her limited skills in English and without legal representation that she was all confused during her appeal hearing before the Board.

10.  These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or that the decision was unfair or unreasonable or that the Adjudicator had acted procedurally unreasonable or irrational, or how did the Board fail to make proper inquiry in its determination of her claim. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.  As for her complaint of being provided with the hearing bundle only a few days before her appeal before the Board that she was not given sufficient time to prepare for her appeal, the Applicant did not provide any documentary evidence to corroborate her such assertions, nor did she raise any such issues during her appeal hearing when she was able to give evidence and make proper representation of her case to the Board with the assistance of an interpreter without any problem. In the circumstances I do not find any merits in this complaint of the Applicant either.

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 decisions that the risk of harm in her claim if real 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.  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.  Moreover, the Applicant recently on 19 January 2024 filed an affirmation requesting to withdraw her application as she has been given dependent visa but without providing any further or relevant details or documentary evidence in support of her assertion.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss 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