SANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 611/2019

[2024] HKCFI 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 611 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 the Applicant being absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 1 April 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 1 April 2017 or within 14 days of its early termination, but when her contract was prematurely terminated on 27 May 2015, she did not depart and instead overstayed, and was arrested by police on 7 October 2015. 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 over their domestic disputes and/or her creditor due to her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Malang, Indonesia. After leaving school she married her husband and raised a family with 2 children in her home district.

3.  As her husband was a truck driver with limited income, and to help out with their family’s finance, the Applicant in 2003 started to come to Hong Kong to work as a foreign domestic helper, returning to Indonesia only for holidays.

4.  In about 2011 at her husband’s request, the Applicant during her return to Indonesia for holiday borrowed a loan from a local money-lender for her husband’s investments, and with the loan to be repaid by installments by her husband from his investments.

5.  However, by 2013 her husband lost all his investments, and when he was unable to repay the loan, the money-lender started to make threats against the Applicant who then tried to make payments whenever she could spare from her salaries earned in Hong Kong.

6.  At about the same time her husband admitted to the Applicant of having a girlfriend in Indonesia whom he wanted to marry as his second wife, and when the Applicant objected to such proposal, he became furious and threatened her on the phone that he would kill her when she returned to Indonesia, and went ahead to marry his girlfriend.

7.  In May 2014 the Applicant returned to Indonesia for holiday, she angrily confronted her husband and his second wife during which she was beaten by her husband who threatened to kill her if she still refused to accept his second wife, and so the Applicant fled from her home and returned to Hong Kong to continue with her employment as a foreign domestic helper, but when her last employment contract was prematurely terminated on 27 May 2015, she was afraid to return to Indonesia due to the threats from her husband and her creditor 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 8 December 2017 and attended screening interview before the Immigration Department with legal representation.

8.  By a Notice of Decision dated 22 December 2017 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”).

9.  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 husband or creditor upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of them to seriously harm or kill her over their disputes, that in any event these were private domestic or monetary disputes between them 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 areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate her.

10.  On 5 January 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 10 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 February 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband or her creditor that caused her to overstay in Hong Kong to seek protection, that she was not a forthright witness and that she had fabricated her account of events to create a basis for her application for protection from refoulement to her home country, that even if her account were true that there was no reliable evidence of any real intention of either of them to seriously harm or kill her as her husband had already taken his girlfriend for a wife that there was no reason for him to harm the Applicant while her creditor just wanted her to repay her loan, and that in any event there were private disputes between them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts 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.

12.  On 5 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in that the Board failed to properly apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event that the decision just focused on whether such reliefs showed merely signs of positive improvement;

(2)  Procedural impropriety in that the Board failed to conduct sufficient inquiry into the relevant COI;

(3)  Procedural impropriety/irrationality in the Board’s failure to give reasons for its assessment of lack of BOR 3 risk and/or sufficient basis to support its conclusion of lack of BOR 3 risk in the Applicant’s claim;

(4)  Error/misdirection in law in the Board’s failure to take into account the consideration of psychological strain and threats to the Applicant personally or threats to kill her;

(5)  That there was no basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon her refoulement; and

(6)  Procedural impropriety in the Board’s failure to consider the Applicant’s fear properly and that her fear still continues due to actions in the Philippines that after they had killed her husband that they are now targeting the Applicant.

13.  Although the Applicant did earlier request an oral hearing for her application, she did not appear at the scheduled hearing on 23 May 2024 without any explanation, and while the notice of hearing sent to her last reported address had subsequently been returned through undelivered post and that she did not answer any of the phone calls made to her by the Court, subsequent written confirmation from the Immigration Department shows that it is the same latest address and telephone number as provided to them by the Applicant. In the circumstances I do not see any other alternative but to proceed to consider her proposed grounds without any further hearing and in her absence.

14.  The Applicant’s intended challenges as above are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence were there to suggest that the Applicant had been subjected to torture or CIDTP by anyone while in her home country, while her complaint under Ground (6) about her husband being killed in the Philippines is clearly unsupported by any evidence or even in her own case that it appeared to have been just copied from the claim of another applicant for non-refoulement protection which has nothing to do with the Applicant’s own case based on private disputes with her husband and creditor only without any official involvement or political element whether in Indonesia or the Philippines. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

15.  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.

16.  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 73 – 104 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim even if real are localized ones 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.

18.  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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore 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