SRI HASTUTIK v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 897/2018

[2020] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 897 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 41-year-old national of Indonesia who last arrived in Hong Kong in 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 17 August 2012 or within 14 days of its early termination, but when her contract was prematurely terminated on 17 September 2011, she did not depart and instead overstayed and was arrested by police on 16 June 2012.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her brother and/or his creditor for failing to assist him to repay his loan, and after her torture claim was rejected, she then raised a non-refoulement claim for protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Kedunggalar, Ngawi, East Java, Indonesia.  After leaving school she worked as a domestic servant in Jakarta for 4 years before coming to Hong Kong in 2001 to work as a foreign domestic helper, regularly remitting money to her parents in Indonesia for their support.

3.  In 2010 she was informed by her brother that he had borrowed a loan from a neighbor for their father’s hospital expenses and needed financial assistance from her to repay the loan, which the Applicant did by remitting monthly payment to him, but later when she returned home to Indonesia for holiday, her brother told her that he intended to leave with his girlfriend to live in Central Java, and that she should take over the burden of repaying the remaining balance of his loan to his creditor, and when she objected to his proposal, he threatened to beat her if she refused.  The Applicant was very upset and returned to Hong Kong to continue with her employment.       

4.  However, when her last employment contract was prematurely terminated on 17 September 2011, and when she heard from her family that her brother’s creditor was looking for her for repayment of his loan and threatened to kill her if she failed to do so, she became fearful to return to Indonesia, and so she overstayed in Hong Kong, and upon her arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Supplementary Claim Form on 14 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 28 May 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk but including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 her brother or his creditor would harm her upon her return to Indonesia or that her fear is real and foreseeable due to the absence of any past ill-treatment from them, that the monetary dispute between her brother and his creditor had nothing to do with her or that it would have any legal effect on her, that in any event in the absence of 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 253 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 perceived enemies to locate her.

7.  By a Notice of Further Decision dated 27 October 2017 the Director again rejected the Applicant’s claim upon receiving and considering further submissions from her but without any 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 Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 9 June 2015, and for which she attended an oral hearing on 15 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 7 May 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found whatever risks the Applicant may fear from her brother or his creditor upon her return to Indonesia would be diminished or negated by the lapse of all the years that had passed that there is no reason to expect that they would still have any adverse interest in her, that in any event with state or police protection available to her if needed as well as reasonable internal relocation within Indonesia for her to move safely to other area away from her home district without any risk of her being located by her brother or his creditor that her claim for non-refoulement protection failed on all applicable grounds. 

10.  On 23 May 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 no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions and all the documents from the hearing bundle for her appeal before the Board but without putting forward any proper or valid grounds for her intended application. Nor did she request any oral hearing for her application.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge. 

11.  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.  

12.  In the Applicant’s 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 her 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.          

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