AAR ARYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 732/2023

[2024] HKCFI 426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 732 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 27-year-old national of Indonesia who arrived in Hong Kong on 26 April 2019 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 November 2021 as extended or within 14 days of its early termination, but when her employment was prematurely terminated on 9 December 2020, she did not depart and instead overstayed, and was arrested by police on 19 February 2021. After she was referred to the Immigration Department for investigation, 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 rejecting him and for having a relationship with another man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Kujangsari, District Langersari, Banjar City, Indonesia. After leaving school she worked in the factory in her home district, and formed a relationship with her boyfriend from their former school.

3.  In April 2019 she came to Hong Kong to work as a foreign domestic helper, but sometime in May 2019 she received news of her boyfriend having an affair with another girl from her home village, and after confronting her boyfriend on the phone who admitted the affair, she then ended their relationship.

4.  However, several months later in August 2019 her former boyfriend called her to inform that he had already ended his affair with the other girl and asked to resume the relationship with the Applicant, but when she refused, he then made threats against her.

5.  Thereafter the Applicant in April 2020 formed a relationship with another man in Hong Kong, and later when her former boyfriend called her again to demand that they get back together, and when the Applicant refused and revealed that she had met another man in Hong Kong, her former boyfriend became furious and threatened to kill her when she returned to Indonesia.

6.  Henceforth when her employment was terminated on 9 December 2020, the Applicant 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 13 November 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 7 January 2022 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 assessed the level of her being harmed or killed by her former boyfriend upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her or of any reason for him to still have any adverse interest in her after all these years since she left the country, that in any event it was a private relationship dispute between just the 2 of 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 270 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 her former boyfriend to locate her.

9.  On 21 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 7 November 2022 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made on her behalf by her lawyer. On 20 April 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board accepted the Applicant’s claim of relationship dispute with her former boyfriend but found no reliable evidence of any real intention of her former boyfriend to seriously harm or kill her, and that in any event it was a private personal dispute between the 2 of 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 for her to move safely to other part 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.

11.  On 16 May 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just repeated her claim as before without putting forth 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.

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 correctly established by both the Director and the Board in their decisions that the risk of harm in her claim 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.

14.  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.  Moreover, the Applicant recently on 30 November 2023 filed an affirmation requesting to “cancel” her application but without providing any further details or explanation for her request.

16.  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 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