RINI AGUSTINA v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1000/2018

[2019] HKCFI 2293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1000 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 21 April 2004 with permission to remain as a visitor up to 25 April 2004 when she did not depart and instead overstayed until she was arrested by police more than nine years later on 13 May 2013.  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 for failing to repay his loan made in her name.  She was subsequently released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Ternyang, Sumberpucung, Malang, East Java, Indonesia.  After leaving school she worked in a grocery store, married her husband and continued to reside in Malang, East Java.

3.  Her marriage did not however fare well as her husband had a hot temper and frequently indulged in gambling and drinking.  Starting from 2000 the applicant would take short trips to visit Hong Kong and Mainland China, and during her last trip to Hong Kong in April 2004 she overstayed and undertook unauthorized employment with a false identity.

4.  In about 2013 she received a letter from her husband in Indonesia demanding money from her to enable him to repay his loan to a loan shark which he claimed to have made in her name back in 2000, and threatened that if she did not send him money, the loan shark would come after her to harm or kill her.

5.  As a result of the threats, the applicant became fearful for her life, and upon being arrested by the police, she raised her non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 13 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service. 

6.  By a Notice of Decision dated 16 March 2017 the Director of Immigration (“the 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 (“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 there will be any real or substantial risk of her being harmed or killed by her husband or her creditor upon her return to Indonesia due to the absence of past ill-treatment from them, that there is no reliable evidence that her husband did borrow money from the loan shark in her name back in 2000 or that the loan shark was pursuing her over the loan as the letter she claimed from her husband was said to have been lost, that in any event that her disputes with them were domestic or private monetary matters 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 258 million people spread across a vast territory that it would not be unduly harsh for the applicant as an able-bodied adult with work 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 the loan shark to locate her.

8.  On 28 March 2017 the applicant filed an appeal to the Torture Claims Appeal Board(“the Board”) against the Director’s decision, and for which she attended an oral hearing on 2 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 7 March 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 evidence on the threats from her husband and the loan shark evasive and unreliable, that there is no reliable evidence that she is being pursued by the loan shark, and that in any event state/police protection would be available as well as reasonable internal relocation within Indonesia in many other cities away from her home district such as Jakarta or Surabaya where she can safely move and settle without any fear of risk of harm from her husband or the loan shark that her non-refoulement claim for protection failed on all applicable grounds.

10.  On 4 June 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

 (1) error/misdirection in law in their failure to take into account the consideration of psychological strain and threats to the applicant that she suffered mental distress caused by her enemy with great fear for her life;

 (2) error/misdirection in law in their taking into account irrelevant considerations including the manner of her departure from Indonesia;

 (3) procedural impropriety/irrationality in their failure to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support the conclusion of lack of BOR 3 risk; and

 (4) procedural impropriety in their failure to consider her claim under BOR 2 risk properly or at all.  

11.  These are however just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board erred in their decisions,while the complaints that they failed to assess her BOR 2 or BOR 3 risks or to give their reasons are simply factually incorrect, as both clearly did so (paragraphs 19 – 24 of the Director’s decision and paragraphs 87 – 92 of the Board’s decision) that there is simply no basis or merits in any of these complaints of the applicant.

12.  As has been repeatedly emphasized by the Court of Appeal, 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 as to her claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 37 – 59 of its decision and with the benefit of hearing her in evidence and in her answers to questions raised of her claim during the oral hearing of her appeal, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

14.  Furthermore, the fact 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.

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