SAMSIYAH SAMSUDIN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 1156/2018

[2021] HKCFI 1024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1156 of 2018

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 40-year-old national of Indonesia who last arrived in Hong Kong on 20 January 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 9 March 2009 or within 14 days of its early termination, but when it was prematurely terminated on 23 March 2008, she did not depart and instead overstayed and was arrested by police on 26 August 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor for failing to assist her father to repay his loan, and was subsequently released on recognizance pending the determination of her claim, during which she entered into a relationship with a man in Hong Kong out of which she gave birth to a son in September 2014, and for whom she also raised a similar claim on the same basis as hers to be jointly determined with an additional ground of fear of being harmed or discriminated by the Muslim community for giving birth to a child out of wedlock. They were subsequently released on recognizance pending determination of their joint claim.  

2.  The Applicant was born and raised in Kabupaten Magetan, East Java, Indonesia. After leaving school she assisted in her parents’ farming in their home village, and in April 2001 she came to Hong Kong to work as a foreign domestic helper for 2 years before returning to her home in Indonesia in September 2003.

3.  While back to live with her parents in her home village, the Applicant was told by her father that he had borrowed a loan from his creditor but was unable to repay his loan, and suggested to marry her to his creditor in settlement of his debt, but she refused and instead proposed to help by resuming working as a foreign domestic helper in Hong Kong so as to send him money to pay off his debt, and so in March 2005 the Applicant returned to work in Hong Kong.

4.  During her stay in Hong Kong, the Applicant formed a relationship with a married man, and when her last employment contract was terminated on 23 March 2008, she did not depart for Indonesia as she was fearful of any harm from her father’s creditor, and instead overstayed in Hong Kong and subsequently raised her torture claim later taken as a non-refoulement claim, for which she completed a Supplementary Claim Form (“SCF”) on 3 January 2015, then a Non-refoulement Claim Form (“NCF”) for her son’s claim on 14 April 2015, and also attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 3 March 2016 the Director of Immigration (“Director”) rejected the claim of the Applicant and her son 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 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 claim of the Applicant and her son and assessed the level of risk of harm from the creditor of her father or the Muslim community upon their return to Indonesia as low due to the absence of any past ill-treatment from them, that there is no evidence of any threats from her father’s creditor or anyone in the Muslim community other than the Applicant’s own speculation, that in the absence of any official involvement that state or police protection would be available to the Applicant and her son 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 256 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 with her son 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 father’s creditor or any Muslim to locate them.

7.  By a Notice of Further Decision dated 23 June 2017 the Director again rejected the claim of the Applicant and her son 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”).

8.  By then the Applicant and her son were already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 17 March 2016, and for which the Applicant attended an oral hearing on 20 September 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 29 May 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted that the Applicant may have good reasons to be concerned about her father’s debt situation and as a single mother with an illegitimate child were she to return to Indonesia but found no evidence of any threats from anyone against her or her son, that in any event state/police protection as well as assistances from the Indonesian government and various NGO would be available to her and her son if needed upon their return to Indonesia as well as reasonable internal relocation for the Applicant to move safely with her son to other area away from her home district without any risk of being located by anyone that their claim for non-refoulement protection failed on all applicable grounds.  

10.  On 21 June 2018 the Applicant filed a Form 86 for herself only 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 the Applicant merely attached copies of those decisions and other documents from the hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, 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 their 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.      

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