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HCAL 1994/2018
[2021] HKCFI 1741
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1994 of 2018
BETWEEN
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Siti-Kasturi |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 38-year-old national of Indonesia who first arrived in Hong Kong in September 2012 with permission to work as a foreign domestic helper, but on 15 January 2017 she was arrested by the police for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her step-father for refusing to assist him in repaying his debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Pekalongan, Tawa Tengah, Indonesia. Her father passed away when she was young, and her mother later married her step-father and brought her and her siblings to live with her step-father.
3. After leaving school the Applicant married her husband arranged by her step-father, but when she later divorced her husband, her step-father became furious and often scolded her for the same, and in order to avoid further conflicts, the Applicant left Indonesia in 2012 to come to work in Hong Kong as a foreign domestic helper.
4. In February 2014 she received a telephone call from her step-father that he wanted her to marry his creditor so as to absolve his debts, but when she refused, his step-father then threatened to kill her if she returned to Indonesia for failing to help him with his debts problem, and hence she was afraid to return to Indonesia.
5. On 15 January 2017 the Applicant was arrested by the police for undertaking unauthorized employment for which she was convicted and sentenced to prison for 2 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 February 2018 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 12 March 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”).
7. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the claimed future risk of harm from her step-father 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 reliable evidence of any real threats from her step-father as alleged, that in any event it was a private family dispute 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”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 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 parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her step-father to locate her.
8. On 20 March 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 20 July 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 20 August 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.
9. In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence of threats from her step-father that it doubted the credibility of her claim, and that in any event in the absence of 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 step-father that her claim for non-refoulement protection failed on all applicable grounds.
10. On 20 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. 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 decision that the risk of harm in her 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.
13. 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.
14. 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.
Dated the 17th day of June 2021
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(MAK Sze-ki)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 17th June 2021
Siti-Kasturi
Applicant’s ref. no.:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17th June 2021
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 10870/18/3/322/I1200
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 168/18 (formerly RBCZ/10827/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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