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

HCAL 1042/2018

[2019] HKCFI 2666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 1042 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 35-year-old national of Indonesia who was last permitted to remain in Hong Kong to work as a foreign domestic helper, but when her employment contract expired in August 2013 and when she was unable to find a new employer, she did not depart and instead overstayed in Hong Kong until her arrest by the police on 3 April 2014.  After she was referred to the Immigration Department for investigation, she raised anon-refoulement claim on the basis that if she returned to Indonesia she would be harmed orkilled by her abusive husband or his creditor for failing to give him money to repay his loans.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Purbalingga, Central Java, Indonesia.  After leaving school she worked as a salesgirl and later as a foreign domestic helper in Singapore,and married her husband in Kemayoran, Indonesia.

3.  Shortly after the marriage, her husband lost his job and borrowed a loan from a local money-lender to start his own car trading business, and with help from the Applicant’s remittance from Singapore he managed to repay his loan by instalments.

4.  However, later her husband demanded more money from the Applicant as his car trading business was not doing well and he started to have difficulty making his loan repayments, and whenever the Applicant enquired about his business, he would lose his temper and threatened to hit her, and did hit her when she later returned to Indonesia from Singapore.

5.  To avoid further abuse from her husband, the Applicant in August 2009 went to work in Hong Kong as a foreign domestic helper and made monthly remittance from her salary to her husband in Indonesia to assist in his loan repayment.

6.  In mid-2010 the Applicant returned to Indonesia during holiday when she was told by her parents that her husband had left for another woman, and that his creditor had come to their home looking for him as well as the Applicant pressing for repayment of his loan,and when neither could be found, the creditor threatened her family with violence, and when the Applicant subsequently telephoned her husband to ask him why he had not made his loan repayment with the money she had remitted him, her husband denied it and then changed his telephone number so that the Applicant was unable to contact him again.

7.  In late 2012 when the Applicant returned to Indonesia during holiday, she met her husband’s creditor who disclosed that her husband had not made any loan repayment and had disappeared, and hence he warned the Applicant that if she did not repay the loan for her husband, he would come after her to kill her.  The Applicant became frightened and therefore returned to Hong Kong, but after her last employment contract had expired, she did not depart and instead overstayed in Hong Kong, and upon her subsequent arrest by police, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 16 February 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”).

9.  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 and substantial risk of her being harmed or killed by her husband or his creditor upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them,that after all these years since 2012 when she last heard from them that it was doubtful that they would still have any adverse interest in her, that in any event that her problems with them were private or domestic 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 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 his creditor to locate her.

10.  On 28 February 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 20 March 2018 before the Board during which she confirmed her claim as statedin her NCF and in her interview before the Director and answered to further questions raised by the adjudicator of her claim.  On 1 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board also found no substantial grounds for believing the Applicantwould face a genuine and substantial risk of being subjected to ill-treatment by her husband or creditor upon her return to Indonesia after all these years with no further contact with either of them, that none of their past ill-treatments had attained the minimum level of severity under any of the applicable risks, and that such risk was confined to the local area where her family had lived but who had since moved elsewhere to Central Java that it would not be unreasonable for the Applicant to safely move there to join her family without any fear of being located by her husband or his creditor.

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, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

 (1) procedural impropriety in the failure of the Director and the adjudicator to conduct sufficient independent inquiry into the relevant COI or to conduct a critical analysis of their materials or to provide adequate reasons for preferring certain information over the others, and for cherry picking those materials to support their conclusions regarding her claim;

 (2) procedural impropriety in their failure to consider the concept of extended state acquiescence in the consideration of his claim;

 (3) error/misdirection in law in their failure to apply or properly apply the obligation of a signatory state to adopt reforms on means of redress aimed at ensuring the safety of its citizens which are effective in any event;

 (4) irregularity in their failure to give reasons of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk;

 (5) error/misdirection in law in their failure to take into account the consideration of psychological strain and threats to the Applicant resulting from repeated threats to her person or to members of her family; and

 (6) irrationality in their decision as her creditor was still looking for her and that she cannot relocate to other place as she would be traced or located anywhere in Indonesia.

13.  These are however all 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 adjudicator had erred in their decisions, or in what way was the concept of extended state acquiescence relevant to her claim when she had never sought any assistance from the police, or how did the Director or the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, and that it was simply factually incorrect for her to claim that they did not give reasons for their assessment of her BOR 3 risk when clearly both did do so in their decisions.  As such and as none of the assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, 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.

15.  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 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.

16.  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.

17.  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