PURWANTI TRI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 394/2019

[2022] HKCFI 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 394 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 38-year-old national of Indonesia who last arrived in Hong Kong on 7 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment on 7 November 2015 or within 2 weeks of its early termination, but when her employment was prematurely terminated on 24 October 2015 she did not depart and instead overstayed, and was arrested by police on 9 March 2016 for which she was later convicted and sentenced to prison for 6 weeks. After her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s 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 DKH Krajan, Jenangan, Ponorogo, Jatim, Indonesia. After leaving school she worked as a waitress in her home district before travelling to Singapore to work as a domestic helper.

3.  In 2010 she returned to her parents’ home in Indonesia when one day some men came to demand her father to repay his loan to a local money lender, and threatened that there would be serious consequences if he still failed to do so soon.

4.  Sometimes later those men returned with the same demand, but when they could not find the Applicant’s father, they broke things in the house and demanded the Applicant to help pay off her father’s debts by marrying their boss, the money lender, and when the Applicant refused, they then slapped her and threatened that they would kill her next time if she still refused to do so.     

5.  Fearful for her life, the Applicant therefor fled to Malang to take shelter in a friend’s place where she made arrangements to leave Indonesia to work as a foreign domestic helper in Hong Kong, which she did on 1 November 2012 when she departed Indonesia for Hong Kong to start her employment, but when her last employment was prematurely terminated on 24 October 2015, she was afraid to return to Indonesia, and so she overstayed in Hong Kong, and upon her arrest by the police she subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 5 January 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her father’s creditor and the creditor’s followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable evidence of any real intention of them to seriously harm or kill her other than to put pressure on her father to repay his loan, that in any event it was a private monetary 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”) 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 father’s creditor to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 28 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies, discrepancies and implausibility in the Applicant’s evidence about her claimed fear of harm from her father’s creditor that caused her to flee her home country for Hong Kong that it doubted the credibility of her claim, and that in any event even if her claim is true that it was a private monetary dispute between her father and his creditor 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 safely move to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.   

10.  On 12 February 2019 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 or in her supporting affirmation of the same date to which she just attached copies of the 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 decisions 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 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.                

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.

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