HETI WIHANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 869/2018

[2020] HKCFI 2329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 869 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 Applicants:

1.  The 1^st Applicant (“A1”) is a 30-year-old national of Indonesia who last arrived in Hong Kong on 5 September 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 18 July 2016 or within two weeks of its early termination, but when it was prematurely terminated on 1 March 2015 after she became pregnant, she did not depart and instead overstayed until 31 March 2015 when 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 husband’s creditors over his default of his loan repayment and/or by her father who blamed her for bring such problem to the family, and after she gave birth to her son, the 2^nd Applicant (“A2”) born out of her relationship with a man in Hong Kong, she also raised a similar claim for him on the same basis.  They were subsequently released on recognizance pending the determination of their claims.

2.  A1 was born and raised in Village Desa Tumpang, Sub-District Talun, District Blitar, East Java, Indonesia.  After leaving school she married her husband who was a factory worker and raised a family of one child.

3.  One day in May 2011 her husband informed her that he was involved in a traffic accident when his motorcycle injured someone that he needed to borrow some money to pay compensation to the victim, and then a few days later he just left home and disappeared.

4.  Sometime in July 2011 two men came to A1’s home looking for her husband demanding repayment of his loan, and when A1 explained that her husband had disappeared, they threatened her that she should repay the loan on his behalf as soon as possible, and when she still failed to do so, on one occasion in November 2011, these men came to her house and beat her and her father as well as breaking things in their home, and before they left, they threatened that next time if she still failed to repay the loan, they would kill her and her father.

5.  As a result of the threats and beating, her father started to blame her for bringing all these problems to the family, and threatened to drive her out of his home.     

6.  To avoid her father’s fury and further threats and assaults from her husband’s creditors, A1 therefore fled to Surabaya where she applied to work in Hong Kong as a foreign domestic helper, which she did in July 2012 when she departed Indonesia for Hong Kong where she subsequently formed a relationship with a man and became pregnant with A2, and when her second employment contract was terminated, she overstayed in Hong Kong and raised her non-refoulement claim for protection for herself and A2, for which she completed a Non-refoulement Claim Form on 25 April 2016 for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 29 June 2016 the Director of Immigration (“the Director”) rejected the Applicants’ 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 HKBOR (“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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from her husband’s creditors or her father upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that their problems with them were private family or monetary disputes without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 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 creditors or her father to locate them.

9.  By a Notice of Further Decision dated 20 July 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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”).

10.  By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 13 July 2016, and for which A1 attended an oral hearing on 6 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 16 May 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board accepted the Applicants’ claim of threats from the creditors of A1’s husband over his loans and/or problem with her father, but found no evidence of any real intention on their part to seriously harm or kill A1 or A2, and that they were private monetary and family disputes without any official involvement that state/police protection would be available to the Applicants upon their return to Indonesia as well as reasonable internal relocation for them to move safely to other area away from A1’s home district without any risk of being located by her husband’s creditors or her father that their claim for non-refoulement protection failed on all applicable grounds.  

12.  On 18 May 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date A1 merely repeated her claim that their lives would be in danger in her home country but without putting forward any proper grounds for their intended challenge, nor did they request any oral hearing for their application.  As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably basis for their intended challenge.

13.  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.

14.  In the Applicants’ case, 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 their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.  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 Applicants’ claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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