DIANA DAMAYANTI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 573/2018

[2020] HKCFI 1777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 573 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 32-year-old national of Indonesia who last arrived in Hong Kong on 1 April 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 March 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 1 April 2014, she did not depart and instead overstayed and was subsequently arrested by police on 21 September 2015.  After she was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband or his creditors for failing to assist him in repaying his loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tasikmalaya, West Java, Indonesia.  After leaving school she married her husband in 2000 and moved to live with him in Cikarang, West Java where she gave birth to their two children and ran her street food stall while her husband worked in the factory.

3.  However, in late 2004 or early 2005 her husband lost his job and became idle at home.  Soon he would start demanding money from the Applicant for his gambling, and when she was unable to do so, he would become abusive by slapping and punching her and breaking things at home.  He would also borrow loans from the banks and required her to be the guarantor of his loans as well as helping him to repay them, and whenever he had difficulties making repayments, his creditors would send people to their home to threaten them with violence.

4.  To improve their financial situation the Applicant closed down her food stall in March 2012 and came to Hong Kong to work as a foreign domestic helper by remitting most of her monthly salary to her husband to enable him to maintain their family in Indonesia and to repay his loans.

5.  In March 2014 when she returned to Indonesia for vacation, she discovered that her husband had failed to repay his loans with her monthly remittance and instead spent all of them on his gambling, and as a result his creditors would send men to harass and threaten them almost daily.  As a result the Applicant asked for a divorce but her husband refused and instead demanded that she should return to work in Hong Kong and to continue to remit money to him or else he would kill her.       

6.  The Applicant therefore returned to Hong Kong to start her new employment contract, but when it was prematurely terminated and as she was afraid to return to Indonesia, she therefore ceased her contact with her husband and overstayed in Hong Kong during which she formed a relationship with another man and with whom she later gave birth to a child in Hong Kong.  Upon her subsequent arrest by the police in September 2015, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 10 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 31 July 2017 the Director of Immigration (“the 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”).

8.  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 or his creditors upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention on their part to seriously harm or kill her, that in any event her problems with them were private or domestic disputes 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 258 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 Surabaya where it would be difficult if not impossible for her husband or his creditors to locate her.

9.  On 10 August 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 29 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 22 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found that the Applicant had failed to establish any genuine fear of harm from her husband or his creditors in the absence of reliable evidence of any real intention on their part to harm or kill her other than to press her for money, and that in any event with such risks being localized in her home district that it would be safe for her to move to other parts of Indonesia to re-establish her life and work without any risk of being located by her husband or his creditors that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 6 April 2018 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, and in her supporting affirmation of the same date she merely repeated her claim that her life would be at risk of harm from her husband if returned to Indonesia but without putting forward any proper or valid grounds 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 her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably basis for her to challenge the finding of the Board.

12.  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.

13.  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 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.     

14.  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.

15.  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