NINGSIH FITRAH alias FITRAH-NINGSIH alias FITRAH NINGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2106/2023

[2024] HKCFI 3496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2106 OF 2023

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 the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 30-year-old national of Indonesia who last arrived in Hong Kong on 26 January 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 26 January 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 August 2019 she did not depart and instead overstayed, and was arrested by police more than 1 year later on 22 December 2020. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband and/or his creditor for failing to repay her husband’s debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Pait, District Kasembon, Malang Regency, East Java Province, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home district.

3.  In 2015 she discovered that her husband had borrowed a loan in her name from a local money-lender, of which she had a heated quarrel with him during which her husband beat her severely, and demanded her to help him to repay his loan, and so the Applicant had to go work as a domestic helper in Malaysia in December 2015.

4.  In January 2018 she returned to Indonesia and found that her husband had left and disappeared without news, but soon his creditor and followers started to come to her home demanding her to repay her husband’s debts and threatened to kill her if she failed to do so.

5.  As a result the Applicant made arrangement to leave the country again to avoid threats from her husband’s creditor by applying to come to Hong Kong to work as a foreign domestic helper, which she eventually did on 14 August 2018, but when her last employment was prematurely terminated in August 2019, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 31 December 2021 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”).

7.  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 her husband or his creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill her other than to press her to repay her husband’s debts, that in any event it was a private monetary dispute between her husband and his creditor only 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 275 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta or Bali where it would be difficult if not impossible for anyone to locate her.

8.  On 10 January 2022 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 21 February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 November 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no reliable evidence of any real intention of either her husband or his creditor to seriously harm or kill the Applicant over her husband’s debts given that she had had no further contact with her husband since 2015 when she left Indonesia for Malaysia that it is not accepted that there is any adverse interest of either of them in her after all these years since she left the country, and that in any event it was a private monetary dispute between her husband and his creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia if resorted to as well as reasonable internal relocation alternatives for her to move safely to other areas of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 27 November 2023 the Applicant filed his 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 just made bare and vague assertions of the Adjudicator not properly consider her claim or of the interpreter not helpful during her appeal hearing but without providing any necessary or relevant details or particulars or elaboration as to how it was so or to put forward any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality 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 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 decisions that the risk of harm in her claim even if real 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.  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.  Moreover, the Applicant recently on 23 October 2024 filed an affirmation requesting to “cancel” her application as she wants to return to her home in Indonesia but without any further details or explanation as to what has happened to her claimed risk.

15.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I refuse to grant leave and accordingly dismiss her 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