RIRIN MARIANI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 502/2018

[2020] HKCFI 1482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 502 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 39-year-old national of Indonesia who last arrived in Hong Kong on 23 March 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 23 March 2012 or within 2 weeks of its early termination, but when her contract was prematurely terminated on 9 November 2010, she did not depart and instead overstayed and was arrested by police on 22 May 2011.  After she was referred to the Immigration Department for investigation, she raised a torture claim which was subsequently withdrawn, but on 21 October 2013 she then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditors for failing to repay a loan which she claimed to have borrowed for a friend who had since disappeared.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dusun Bangsri, Kecamatan Kandat, Kabupaten Kediri, Jawa Timur, Indonesia.  After leaving school she worked in various manual labour, and in 2007 she came to Hong Kong to work as a foreign domestic helper.

3.  Shortly thereafter the Applicant borrowed a loan for a friend from a finance company in Hong Kong repayable by monthly instalments directly by her friend to the finance company.

4.  Later when the Applicant’s employment contract was terminated, she left Hong Kong to work in Macau, and had since lost contact with her friend.

5.  Sometimes in 2008 the Applicant was informed by her parents in Indonesia that they had received letters from the finance company demanding for repayment of the loan, of which she suspected that her friend had defaulted and hence the finance company was pressing her for repayment.

6.  As the Applicant was unable to contact her friend about the loan, she therefore told her parents to ignore those letters, but one day she was informed by her parents that a lawyer and some policemen had come looking for her over the loan, and threatened that unless the loan was repaid, the finance company would seize her parents’ home and other possessions, and when her parents still failed to make any payment, some debt-collectors would soon arrive with threats of violence against them.

7.  As a result of persisting threats from those debt-collectors, her father therefore took out a loan in Indonesia to pay off the outstanding debt, but given the accumulated interests on the principal sum, it was not enough to satisfy the finance company which however agreed to give the Applicant and her family more time to pay off the remaining balance but with a warning that if they still failed to do so, there would be serious consequences.

8.  The Applicant therefore retuned to Hong Kong in 2010 to work as a foreign domestic helper hoping to earn enough to pay off the outstanding loan, but when her contract was prematurely terminated on 9 November 2010, and as she was afraid to return to Indonesia to face those debt-collectors, she therefore overstayed in Hong Kong, and upon her subsequent arrest, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 25 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  While being released on recognizance pending the determination of her claim, the Applicant was arrested for a series of offences as follows:

(a)   on 5 August 2012 for theft for which she was convicted on 10 August 2012 and sentenced to prison for 2 weeks;

(b)   on 7 May 2013 for possession of another person’s identity card for which she was convicted on 6 June 2013 and sentenced to prison for 12 months; and

(c)   on 14 January 2015 for theft for which she was convicted on 16 January 2015 and sentenced to prison for 7 days.      

10.  By a Notice of Decision dated 1 September 2016 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 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”).

11.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the debt-collectors upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that due to various inconsistencies and discrepancies in the information provided by her in respect of her claim that there were doubts over the  credibility of her claim, that in any event it was a private monetary dispute between her and the finance company 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 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 or Malang where it would be difficult if not impossible for the finance company or debt-collectors to locate her.

12.  By a Notice of Further Decision dated 11 August 2017 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”).

13.  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 15 September 2016, and for which she attended an oral hearing on 19 December 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 21 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

14.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence as to her claimed of being threatened by her creditors that it was not satisfied that there is any real risk that she would suffer harm from them should she return to Indonesia, and that in any event should she do so in the absence of any official involvement that she will be able to move safely to live and work in a location other than her home district where she will not face any risk of harm at the hands of the finance company or their debt-collectors that her claim for non-refoulement protection failed on all applicable grounds.   

15.  On 28 March 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 repeated her wish to judicial review both decisions but without putting forward any grounds for her intended challenge or any reason why she wanted to do so.  As such and in the absence of any reasonably arguable grounds I do not find any basis or merits in her intended application.    

16.  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 or her 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.

17.  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 40 – 56 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or it 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.  

18.  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.     

19.  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.

20.  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