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HCAL 525/2018
[2019] HKCFI 743
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 525 of 2018
BETWEEN
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Indah |
Applicant |
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The Adjudicator of the
Non-Refoulement Claims Petition Office
appointed to determine the Applicant’s Petition |
1st Putative Respondent |
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The 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 35-year-old national of Indonesia who last arrived in Hong Kong on 24 April 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 23 April 2015 or within 14 days of its early termination. On 5 April 2014 her contract was prematurely terminated, but she did not depart and instead overstayed until 16 February 2015 when she was arrested by police. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband’s creditor or debt collectors for failing to repay his loan. She has since been released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Padaherang Village, Ciamis Regency, West Java, Indonesia. After leaving school she got married and has a daughter. In order to help out with her family income, she started to work in 2007 as a foreign domestic helper in Singapore.
3. In 2010 her husband borrowed 200 million Indonesian Rupiahs from a loan company and asked her to co-sign his loan agreement with the terms that the loan was to be repaid within three years at a monthly interest payment of 7.5 million Rupiahs.
4. Until August 2011 her husband was able to keep up with the monthly interest payments, but when he fell short with the payment for that month, the loan company sent two debt collectors to his home to collect the balance, and when they could not find him there, they threatened the applicant that she should make the payment on his behalf, and when she pleaded for more time for the payment, they agreed to give her only one month and threatened that she too would be in trouble if she did not come up with the money.
5. The men returned in October 2011, and when her husband was still unable to pay, the men pointed a gun at his head and threatened that if he still failed to make payment by the end of the month, they would shoot him and sell all his belongings including his home.
6. In order to help her husband the applicant decided to go work in Hong Kong to earn more money, and so in December 2011 she came to Hong Kong as a foreign domestic helper and remitted money from her monthly salaries to her husband to assist with his loan repayment.
7. However, when her employment was prematurely terminated in April 2014, and when she was unable to find another job, she did not make any further remittance to her husband. As a result and due to the continued threats from his creditors, his health deteriorated and eventually died from a heart attack in 2015, and when his creditor started looking for her for repayment of his loan, the applicant felt that her life would be in danger if she returned 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 on 13 September 2017 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.
8. By a Notice of Decision dated 12 October 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 (“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”).
9. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her husband’s creditor or their debt collectors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that their intention was only to press her for repayment of her husband’s loan and not to harm or kill her, that in any event it was a private monetary dispute 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 one million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work 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 husband’s creditor or debt collectors to locate her.
10. The applicant then filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 5 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 7 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
11. In its decision the Board found a number of inconsistencies in the applicant’s claim but despite some doubts over the reliability of her evidence accepted that her husband did owe his creditor money, but found no evidence that the applicant had been subject to any past ill-treatment at the hands of the debt collectors or had attained the minimum severity under any of the applicable grounds, and that in any event it would not be unsafe for her to relocate elsewhere in Indonesia as there is nothing in her account that suggests the debt collectors would be able to pursue her beyond the bounds of her home district that any risk of harm from them would be eliminated, and concluded that her claim for non-refoulement protection fails on all applicable grounds.
12. On 29 March 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in her supporting affirmation of the same date did she put forward any grounds for her intended challenge until 9 January 2019 when she submitted a letter attached with the following grounds:
(1) procedural impropriety in their failure to make full and proper inquiries into the relevant COI including cherry picking them to support their decisions, failing to state why they were preferred over other information, and failure to properly assess and critique her case in light of the relevant COI and to properly conduct an analysis of the COI material itself;
(2) procedural impropriety in failure to consider her claim in a holistic manner;
(3) error/misdirection in law in failure to consider the concept of extended state acquiescence as per paragraph 18 of General Comment No. 2 of the United Nations Committee Against Torture;
(4) error/misdirection in law in failure to properly apply the legal principles relating to satisfaction of due diligence when incorrectly considered it sufficient that some reliefs and avenues of reform had been introduced by the government of the country of origin to combat inter alia police effectiveness and anti-corruption;
(5) error/misdirection in law in failure to consider the psychological harm which befell the applicant as a result of the facts stipulated in her non-refoulement claim when the Director only considered only physical harm; and
(6) irrationality/illegality in that there was insufficient reason to support the Director’s conclusion that the applicant would not be subjected to harm if refouled to her country of origin.
13. These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case, or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the concept of extended state acquiescence relevant to her case which was simply a private loan repayment dispute without any official involvement. None of these assertions were elaborated or presented with any particulars or specifics by the applicant. As such I am unable to see any basis or merits in any of these complaints, or that any of them can reasonably be arguable for her intended challenge.
14. As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.
15. Furthermore, the fact that it has been established by both the Director and the Board in their 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.
16. 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.
17. 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 19th day of July 2019.
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(NG Ka-wing)
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 19 July 2019
Indah
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 19 July 2019
The Adjudicator of the
Non-Refoulement Claims Petition Office
appointed to determine the Applicant’s Petition
1st Putative Respondent’s ref. no.:
USM 8908/17/10/238/I865
The Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2235/17 (Formerly RBCZ 10678/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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