UMI MUJIATI MUHYI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1054/2018

[2019] HKCFI 2653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1054 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 45-year-old national of Indonesia who last arrived in Hong Kong on 15 May 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 May 2014 or within 14 days of its early termination, but when her contract was prematurely terminated on 19 August 2013, she did not depart and instead overstayed and was arrested by police on 12 January 2016.  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 his creditor for failing to help him to repay his loans.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Kesilir Demangan, District Jember,East Java, Indonesia.  After leaving school she assisted in her parents’ farming, married her husband and raised two children who are now adults.

3.  During their marriage her husband indulged in gambling, alcohol and drugs, and would be abusive and violent towards her by constantly demanding money from her for his vice.

4.  In order to get away from her husband’s abuse, the Applicant in 2000 came to Hong Kong to work as a foreign domestic worker during which her husband would frequently demand money from her to pay his creditors for his gambling debts.

5.  In 2002 the Applicant returned to Indonesia, and in order to stay away from her husband, she went to work as a housemaid for a family in Jakarta and sent her salaries to her parents for the support of her children, but her husband would then come to her parents’home to demand money for his use.  In 2008 the Applicant returned to work in Hong Kong,and her husband would continue to come to her parents to demand that they hand over the money sent to them by the Applicant for his use.

6.  However, in August 2013 when her last employment contract was terminated and when she was unable to send any money to her parents, her husband threatened her parents that he would kill her if she returned to Indonesia, and so the Applicant became fearful for her life that she overstayed in Hong Kong, and upon her arrest by the police in 2016 she raised her non-refoulement claim for protection, for which she completeda Non-refoulement Claim Form on 5 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 1 September 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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 all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or his creditor to the Applicant upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that her problems with them were domestic or personal 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 256 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 his creditor to locate her.

9.  By a Notice of Further Decision dated 24 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then the Applicant was already in the process of appealing to the Torture ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of whichwas filed on 13 September 2016, and for which she attended an oral hearing on 28 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 29 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board accepted the Applicant’s account about her abusive husbanddemanding money from her, but found that she had exaggerated the threats from her husbandor his creditor to her whom she had not seen since 2003 and that it is doubtful that after allthese years that her husband would still have any adverse interest in her, and concluded that she failed to establish that she would face any real risk of harm from her husband or his creditor upon return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

12.  On 8 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, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely claimed that she disagrees with their decisions but as she does not understand the contents of their determinations, she is unable to provide any grounds for appeal or review.  As such and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the director or the Board.

13.  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.

14.  In the Applicant’s case, the fact is that it has been established by the Director in his 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 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