SUSI-SETIAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1132/2018

[2021] HKCFI 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1132 of 2018

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Indonesia who first arrived in Hong Kong on 14 December 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment contract was prematurely terminated on 13 September 2011, she did not depart and instead overstayed in Hong Kong until 31 July 2015 when 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 creditors for failing to repay her loans. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in JL Cibeunging Landeuh, Bandung, Jawa Barat, Indonesia. After leaving school she worked as a shop assistant, married her husband and raised a family with one son.

3.  In 2004 she started a resale business by borrowing a loan from a neighbor businessman in her home village with interestd payable per month over her loan.

4.  Initially the Applicant was able to make the interest payments from her business income, but when her business did not fare well, she had to borrow more loans from other neighbours to cover the interest payments of each loan and to keep her business going, but by 2006 her creditors started to demand for repayment of their loans, and when the Applicant was unable to do so, they then took things from her household and made threats against her.      

5.  Fearing for her life, the Applicant fled from her home village to take shelter at a relative’s home in Banjaran, but when she heard that her creditors were looking for her everywhere, she therefore made arrangements to come to Hong Kong to work as a foreign domestic helper, and so in December 2007 she departed Indonesia for Hong Kong for her first employment contract, but later when her last employment contract was prematurely terminated in September 2011, she did not depart and instead overstayed, and on 31 July 2015 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 January 2017 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 22 February 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditors upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that her problems with her creditors were private monetary disputes 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 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 parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditors to locate her.

8.  On 8 March 2017 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 March 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 16 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found the Applicant’s claim relating to her various loans was entirely lacking in coherency, details or credibility that it doubted her claim as simply a fabrication for seeking asylum protection, and that in any event her problems with her creditors were just private monetary disputes 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 areas away from her home district without any risk of being located by her creditors that her claim for non-refoulement protection failed on all applicable grounds.  

10.  On 19 June 2018 the Applicant filed her 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 merely repeated her claim that her life would still be in danger in her home country without putting forward any proper ground for her intended challenge, nor was she able to do so at the hearing of her application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 71 – 78 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 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 to challenge the findings of the Board.  

13.  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 parts 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