SITI-KHOMARIYAH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 58/2019

[2022] HKCFI 1663

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 58 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 refused.

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Indonesia who last arrived in Hong Kong on 31 August 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 29 August 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 April 2015, she did not depart and instead overstayed in Hong Kong, and on 29 September 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for failing to remit money to him in Indonesia for repayment of his debts. She was subsequently released on recognizance pending the determination of her claim.

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

3.  In 2011 her husband borrowed a loan to start a wood trading business, but later when his business failed and when he had difficulties repaying his loan, he asked the Applicant to come to work in Hong Kong to help him with his loan repayment, and so in 2012 the Applicant came to Hong Kong to start working as a foreign domestic helper and remitted money from her monthly salary to her husband in Indonesia.

4.  However, when her last employment was terminated in April 2015 and when she was unable to remit any money to Indonesia, her husband was furious with her and threatened to kill her when she returned to Indonesia, and so the Applicant was afraid to leave and overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 18 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”).

6.  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 upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any direct or physical threats or harm inflicted by her husband on the Applicant or of any real intention of him to seriously harm her other than to put pressure on her to send him money, that in any event it was a private domestic dispute between the two 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 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 Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

7.  On 4 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 23 August 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s claim of fear of threats from her husband over her failure to remit money to him in Indonesia, but found in the absence of any official involvement that it was a private domestic dispute between husband and wife that state/police protection and support and assistance from various government bodies and organizations 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 by her husband that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 8 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, in which she just repeated her claim as before without putting forth any proper ground for seeking relief, while in her supporting affirmation of the same date she stated that the decisions were unreasonable in that they failed to consider all the matters raised in her claim, again without providing any details or particulars or elaboration as to how they did so, but later in her written submissions dated 5 January 2022, the Applicant put forward the following grounds for her intended challenge of those decisions:

(1)  That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(2)  That the Director failed to recognize the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies as well as the politicians which was the direct result of misconduct of the police officials that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in Indonesia would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise which was a clear case of unfair attitude shown by the Director which in itself is enough to render his decision void; and

(4)  That the Director failed to attain the high standard of fairness required by the Wednesbury test in failing to accept the argument that corruption and incompetency of the administration in Indonesia is still a very serious problem as various human rights organizations have compiled reports which stated testament to the Applicant’s assertions that the decision should be considered unreasonable in the scope of public law.

10.  While the Applicant appears to have directed all these complaints only against the Director, given the fact the Director’s decision has already been superseded by the Board’s as the final decision on her non-refoulement claim, and hence is no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549, I shall accordingly treat those complaints instead as the Applicant’s intended challenge of the Board’s decision.

11.  However, they all appear to me just some vague and bare assertions of the Applicant containing several key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board had erred in its decision, or in what way would state acquiescence or torture be relevant to her claim when the factual basis even of her own case at the highest was some private domestic disputes with her husband without any official involvement and that there is never any evidence or suggestion that she has ever been tortured by the police or authorities, or what relevant COI did the Board fail to consider or take into account in its determination of her non-refoulement claim. None of these complaints are materially or factually relevant to the factual basis of the Applicant’s claim. As such I do not find any of them reasonably arguable for her intended challenge, 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, nor do I find any merits in her intended application.

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