ELOK-PASMAWATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 10/2019

[2021] HKCFI 2573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 10 of 2019

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 38-year-old national of Indonesia who last arrived in Hong Kong on 20 October 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 August 2017 or within 14 days of its early termination, but it was prematurely terminated on 5 February 2017 after she was arrested by the Immigration Department for breaching the terms or conditions of her visa for which she was subsequently convicted and sentenced to prison for 3 months, and upon her discharge from prison and was transferred 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 former boyfriend for failing to give him money for his use. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jember, Jawa Timur, Indonesia. After leaving school she married her former husband and raised a family with a son in her home district.

3.  In 2000 she started to work as a domestic helper in Malaysia, and then in 2004 she came to Hong Kong to work as a foreign domestic helper, during which her husband left her for another woman, and that their marriage was eventually dissolved.

4.  In 2008 she through social media met her former boyfriend who was an Indonesian then working in South Korea, and when he later returned to Indonesia in 2011, the Applicant also left her employment in Hong Kong to return to Indonesia to cohabit with him during which she however found him abusive towards her and often demanded money from her for his use, and for which she eventually returned to work in Hong Kong in September 2012 by remitting her monthly salary to him in Indonesia.

5.  In 2015 the Applicant returned to Indonesia to resume her cohabitation with her former boyfriend, during which she discovered that he had also become addicted to drugs and for which he would demand for more money from her, and when she was unable to meet his demands, he would become violent by beating her.

6.  To avoid his abuses, the Applicant returned to work in Hong Kong in October 2016, and when she stopped remitting money to her former boyfriend, he would make threats against her including killing her when she returned to Indonesia, and so when her last employment contract was terminated on 5 February 2017, she was afraid to return to Indonesia and 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 Non-refoulement Claim Form (“NCF”) on 21 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 30 April 2018 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”).

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 risk of her being harmed or killed by her former boyfriend upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that she had ceased contact with him since 2016 that it is doubtful that he would still have any adverse interest in her after all these years, that in any event her problem with him was a private domestic dispute 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 260 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 away from her home district in large cities such as Surabaya or Bali where it would be difficult if not impossible for her former boyfriend to locate her.

9.  On 14 May 2018 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 9 November 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 10 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s claim of threats and abuses from her former boyfriend but found that it was a private domestic dispute between them 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 move safely to other area away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 3 January 2019 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 just attached copies of those decisions 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 irrationality 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.

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 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.     

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