INDIANA SAHLO v. TORTURE CLAIMS APPEAL BOARD

HCAL 306/2019

[2022] HKCFI 596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 306 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 oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Indonesia who last arrived in Hong Kong on 26 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 August 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 9 September 2013, she did not depart and instead overstayed until 13 August 2014 when she was arrested by police.  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 abusive husband and/or by his creditor over his outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Donggala Regency, Central Sulawesi Province in Indonesia. After leaving school she worked in various places, and in 1999 she started to come to Hong Kong to work as a foreign domestic helper.

3.  In 2004 she returned to her home in Indonesia to marry her husband who then asked her to guarantee a loan for his business from a local loan shark whom she never met but which she did as told, but soon she found her husband very abusive towards her by frequently slapping, hitting and punching her at will, and would continue to do so even when she was pregnant with their child, and after a particularly violent attack by him one day in November 2004 when the Applicant was only rescued by the neighbours, she left her husband to return to live with her parents.

4.  A few weeks later her husband came to demand that she returned to his home, but when the Applicant was still too afraid of him to do so, he threatened that there would be serious consequences to her and her parents.

5.  After giving birth to her daughter, the Applicant in 2005 left her daughter in her parents’ care and returned to work as a foreign domestic helper in Hong Kong, and in January 2006 when she visited her daughter and parents in Indonesia, her husband again came to demand that she returned with the daughter to his home, and when she refused, he tried to snatch their daughter from her but was restrained by her father and neighbours that he left furiously.      

6.  Later in mid-2006 the Applicant heard that her brother was found dead with a head injury, of which she suspected that it was her husband who murdered her brother in revenge for her refusal to return to him, but as the police did not arrest her husband due to lack of evidence, the Applicant cut off all her contact with her husband by changing her phone number, but when her last employment was terminated in September 2013, she was afraid to return to Indonesia for fear of being harmed or killed by him, and so she overstayed in Hong Kong, and upon her arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 November 2017 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 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or his creditor upon her return to Indonesia as low due to the absence or low frequency or intensity of past ill-treatment from them, that she has had no further contact with her husband for more than 10 years that it is doubtful that he would still have any adverse interest in her, nor of any evidence of any adverse interest of his creditor in her over her husband’s loan, that in any event her problems with them were private domestic or 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”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 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 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 or his creditor to locate her.

9.  On 20 December 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 13 August 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s evidence regarding her claimed fear of harm from her husband or his creditor confusing, inconsistent and conflicting that it doubted the credibility of her claim that her own evidence of having no further contact with her husband all these years and the fact that he was said to have gone to work in Taiwan since that it found her claim that he still poses a threat to her or her family is simply false, and concluded that the Applicant has failed to establish that there are substantial  grounds for believing that she will face a real risk of ill-treatment at the hands of her husband or anyone else upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.     

11.  On 1 February 2019 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 or in her supporting affirmation of the same date, 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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 48 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 findings of the Board.  

14.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

15.  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.

16.  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