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HCAL 325/2019
[2022] HKCFI 1092
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 325 OF 2019
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Suyatmi |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration
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Putative Interested Party
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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 39-year-old national of Indonesia who had been permitted to work in Hong Kong as a foreign domestic helper since 2007, but when her last employment contract was terminated on 3 February 2014 after she was arrested by police for theft and handling stolen goods, for which she was subsequently convicted and sentenced to prison for 5 months, and 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 creditor over her outstanding debts and/or by her stepmother as her creditor is her stepmother’s brother. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Village Gemabarjo, Sub-district Tegalombo Pacitan Regency, East Java, Indonesia. When she was small her mother had cancer and for which her father borrowed a long term loan to pay for the medical expenses, and after her mother died, her father married her stepmother.
3. After leaving school the Applicant worked in various jobs to assist her father with his loan repayment, and in 2003 she went to work as a domestic helper in Singapore, and in 2004 she borrowed a loan from her stepmother’s brother who was a money lender to enable her father to pay off all his debts.
4. In 2007 she started to work as a foreign domestic helper in Hong Kong and continued to remit money to her father in Indonesia to repay her creditor by monthly instalments, but in 2014 she was arrested by police for theft and handling stolen goods, and after her employment was terminated and she was sent to prison, she was unable to repay her loan, and for which both her creditor and her stepmother had made threats against her, and hence after her discharge from prison, she was afraid to return to Indonesia and therefore sought non-refoulement protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 19 April 2017, 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 or her stepmother upon her return to Indonesia as low due to the absence or low frequency or intensity of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm her other than to put pressure on her to repay her loan, 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 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 her creditor or stepmother to locate her.
7. On 27 April 2017 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 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.
8. In its decision the Board found inconsistencies and contradiction in the Applicant’s evidence regarding her loan and her claimed fear of harm from her creditor or her stepmother that it doubted the credibility of her claim, that in any event it was a private monetary and/or domestic dispute 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.
9. On 4 February 2019 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 or in her supporting affirmation of the same date in which she just repeated her claim as before that she does not want to return to her home country as her life would still be in danger there 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 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.
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 respective decisions that the risk of harm in the Applicant’s 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 14th day of April 2022.
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(K.H. LI)
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
14 April 2022
Suyatmi
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 14 April 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 6973/17/4/249/I696
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 255/17
(Formerly RBCZ/3000430/14) (T8S98)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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