SUWARSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1485/2021

[2021] HKCFI 3634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1485 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 48-year-old national of Indonesia who last arrived in Hong Kong on 27 April 2019 with permission to continue to work as a foreign domestic helper until the expiration of the remaining extended period of her employment contract on 24 November 2020 when she thereafter did not depart and instead overstayed in Hong Kong, and was subsequently arrested by police on various offences including overstaying and soliciting for an immoral purpose for which she was convicted on 19 April 2021 and was sentenced to prison for 2 months.  Upon her discharge from prison and was referred to the Immigration Department for deportation, she then 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 outstanding debts. 

2.  The Applicant was born and raised in Sumbermanjing Wetan, Malang, East Java, Indonesia. After leaving school she married her husband and moved to his place in Gempol, Pasuruan, Jatim where they raised a family with 2 children.

3.  Soon the Applicant discovered that her husband was an alcohol and a gambler, frequently relying on borrowings from the local loan sharks for his habits, and when he ran out of credit, he then forced the Applicant to sign on his loan agreements as guarantor for his loans, but when he failed to repay his loans, those loan sharks would send their men to make threats against both of them which the Applicant found intolerable and eventually in 2014 she divorced her husband and came to Hong Kong to work as a foreign domestic helper, but when those loan sharks were unable to find her in Indonesia, they then sent threatening messages to her mobile phone until 2017 after she had changed her phone number, and when she returned to Indonesia for home leave she would hide in various places to avoid those loan sharks.

4.  However, after her last employment contract had expired in November 2020, she was unable to find another employment, and as she was afraid to return to Indonesia, she 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 23 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 14 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband’s creditors upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that apart from some threating messages from them to her phone until 2017 that it is doubtful that after all these years that they would still have any adverse interest in her, that in any event it was a private monetary dispute between her husband and his creditors 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 267 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 husband’s creditors to locate her.

7.  On 23 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 8 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 6 October 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found glaring inconsistencies and exaggerations in the Applicant’s evidence that it doubted the credibility of her claim, and that in any event it was a private domestic and monetary dispute between her former husband and his creditors 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 safely move 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 25 October 2021 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, 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 33 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.  Furthermore, 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 if true 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.     

13.  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.

14.  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