SARIAH-JAENUDIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1563/2019

[2024] HKCFI 143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1563 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 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 47-year-old national of Indonesia who last arrived in Hong Kong on 11 March 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 2 December 2015 as extended or within 14 days of its early termination, but when her employment was prematurely terminated on 30 December 2014, she did not depart and instead overstayed, and was arrested almost one year later on 29 November 2015. 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 creditors over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Semarang, Indonesia until when she was 5 years old when she and her family moved to Jakarta where she completed her schooling, and in 2001 she started working in Hong Kong as a foreign domestic helper.

3.  On one occasion while she returned to home for holiday, she was asked by her father for financial assistance, for which she borrowed a loan from a local money-lender to be repaid within 2 years with monthly interest payments, but later upon returning to Hong Kong to continue with her employment, she failed to make any further repayment for her loan, for which her creditor would from time to time come to her family in Indonesia looking for her with threats to kill her over her unpaid debts.

4.  In early 2013 the Applicant returned to Indonesia to be by the side of her ailing mother who later passed away, and to meet the funeral expenses, the Applicant borrowed a loan from another money-lender to be repaid within 2 years, but later in March 2013 the Applicant left Indonesia again for Hong Kong to resume her employment as a foreign domestic helper without making any repayment for her loan, for which she was told by her father that her creditor had also come looking for her with threats to kill her for failing to repay the loan.

5.  However, after her last employment was terminated in December 2014, the Applicant was afraid to return to Indonesia and so she overstayed in Hong Kong, and upon her subsequent arrest almost one year later in November 2015 she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 15 October 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 creditors over her unpaid debts upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of either of her creditors to seriously harm or kill her other than to press her to repay her loans, that in any event they were private monetary dispute between the Applicant and her creditors 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 the country away from her home district in large cities such as Surabaya or Bali where it would be difficult if not impossible for her creditors to locate her.

8.  On 29 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 29 March 2019 and 18 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 June 2019 her appeal was dismissed by the Board.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim of fear of harm from her creditors that caused her to overstay in Hong Kong to seek protection, and that in any event even if such risks were real that they arose from some private monetary disputes between the Applicant and her creditors without any state or official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 10 June 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 in which she just repeated her claim as before of fear of harm from her creditors but without putting forth 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 correctly established by both the Director and the Board in their respective decision that the risks of harm in her claim if real are localized ones 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, I therefore refuse to grant leave and accordingly dismiss her 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