NILA AGUSTINA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1172/2018

[2020] HKCFI 142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1172 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Indonesia who last arrived in Hong Kong on 10 April 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 10 April 2015 or within 14 days of its early termination.  On 20 November 2013 her employment contract was prematurely terminated, but she did not depart and instead overstayed and was arrested by police on 20 December 2013.  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 a loan shark for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Surabaya, East Java, Indonesia.  After leaving school she married her husband, gave birth to a daughter, and became a housewife.

3.  In 2009 her marriage ended in divorce, and she moved with her daughter to live with her elder brother’s family in Village Gondosuli, East Java, and for which she and her brother borrowed a loan from a local loan shark for their living expenses, and to repay the loan the Applicant applied to work as a foreign domestic helper in Hong Kong, which she did on 16 November 2010 when she departed for Hong Kong to start her first employment contract, and from her monthly salary she would remit money to her brother in Indonesia to repay the loan by instalments.

4.  On 20 November 2013 her then employment contract was prematurely terminated, and with no income she was unable to make any further remittance to her brother for the loan instalment payments, and when she heard that the loan shark had sent men to threaten her brother and to cause damage to his home that her brother had subsequently gone into hiding, and that the loan shark was looking to her for repayment or to force her to marry him in lieu thereof, she became fearful for her life and therefore overstayed in Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 5 March 2015 and attended screening interviewbefore the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 16 October 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the HongKong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the loan shark upon her return to Indonesia as low due to the absence of intensity and frequency of past ill-treatment from him, that there is no direct evidence that the loan shark had made any threats against the Applicant other than some hearsay from her brother, that in any event it was a personal 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 250 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 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 the loan shark to locate her.

7.  By a Notice of Further Decision dated 29 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

8.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 27 October 2015, and for which she attended an oral hearing on 13 January 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 11 June 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found no reliable evidence of any direct threats from the loan shark to the Applicant, that in any event it was a personal monetary dispute between them that state/police protection would be available as well as reasonable internal relocation for the Applicant to move safely to other places within Indonesia such as Jakarta where she can earn a living and where it would be impossible for the loan shark to locate her that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 22 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

 (1)  procedural impropriety in failure to conduct sufficient independent inquiry into therelevant COI or to conduct a critical analysis of them or to provide adequate reasons as to why certain materials which supported its decision were preferred over those which did not or to cherry pick those COI which supported its conclusion;

 (2)  error/misdirection in law in failing to apply or properly apply the principle concerning the obligation of the state to adopt reforms and means to protect its citizens;

 (3)  error/misdirection in failing to consider the psychological non-physical aspects of torture and/or CIDTP;

 (4)  irrationality in failing to apply high standards of fairness in assessing her claim;

 (5)  error/misdirection in law in failing to consider the psychological impact of the facts raised as part of the Applicant’s claim including threats and abusive language which she had suffered; and

 (6)  irrationality in providing no sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.  

11.  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 Board or the adjudicator had erred in the decision,or how did the adjudicator failed to apply high standards of fairness in assessing her claim,or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state reforms to her claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in her process before the Board or in the Board’s decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any of these grounds reasonably arguable for her intended application.

12.  As has been repeatedly emphasized by the Court of Appeal, 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] HKCA400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  The fact is that it has been established by both the Director and the Board in their respective decision 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.

14.  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.

15.  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.

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