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

HCAL 200/2018

[2019] HKCFI 1786

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 200 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 arrived in Hong Kong on 23 September 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 24 September 2015, but was arrested by police on 18 August 2015 for taking up other employment without permission, for which she was later convicted and sentenced to prison for two months.  Upon discharge from prison she was referred to the Immigration Department when she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her sister’s creditor for failing to repay her loan on her behalf, and/or by the Muslims majority in her home village for being a Christian.  She was later released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in a village in Bogor District, West Java Province, Indonesia as a Christian but the majority of the villagers were Muslims that she was frequently harassed by them while growing up in her home village.

3.  After leaving school she assisted her parents in farming.  On Christmas day in 2012 while she was celebrating the festival with fellow Christians in the village church, a group of Muslims shouted abuses and threw stones at them, and while she was fleeing from the scene, she saw that the church was on fire and suspected that it was caused by those Muslims. After the incident the applicant decided to leave her home village by coming to work in Hong Kong in 2013 as a foreign domestic helper.

4.  One day in mid-2015 she received a telephone call from her sister in Indonesia that her mother had been admitted to hospital for some serious chronic health problems which required large amount of medical expenses, and asked her to help by remitting money, but when the applicant was unable to do so, her sister then said she would have to resort to borrowing from the local loan shark.

5.  A week later the applicant was informed by her sister that she had borrowed 50 million Indonesian Rupees from the loan shark at a 10% monthly interest payments and asked the applicant to help by making monthly remittance to her for such interest payments, which she did every month thereafter until August 2015 when her employment was terminated and she did not have any income to do so.

6.  In September 2015 she received another call from her sister for help as the loan shark had been pressing her for repayment and had threatened to harm her and the applicant as the loan shark knew that she used to remit money from Hong Kong to her sister to help with the loan repayments.  Thereafter the applicant was told by her sister that the loan shark would continue to threaten her sister and had on some occasions damaged items in her home.  

7.  As the applicant became fearful for her life if she were to be deported to Indonesia, she therefore raised her non-refoulement claim for protection in Hong Kong, for which she completed a Non-refoulement Claim Form on 19 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 31 October 2016 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 the loan shark or by the Muslims villagers upon her return to Indonesia as she was not the borrower and there was no reason for the loan shark to go after her, that any fear of harm from the loan shark was her own groundless speculation, that in any event it was a private monetary dispute between her sister and the loan shark without any official involvement that state or police protection would be available to the applicant in the event that she somehow became involved in their dispute, that there was no reliable evidence that she had been targeted by any Muslim in her home village or anywhere else in Indonesia, 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 255 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 the loan shark or the Muslim villagers to locate her.

10.  On 11 November 2016 the applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 21 August 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 23 November 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted the applicant’s account of events in Indonesia and her subsequent conversations in Honk Kong with her sister regarding the loan and the loan shark, but even putting her case at the highest that it found no evidence of her ever being threatened by the loan shark, let alone at the minimum severity under any of the applicable risks, nor was it accepted that she was able to establish a well-founded fear of persecution on the ground of her Christian faith based on one single incident in her home village years ago in Indonesia where freedom of religion is guaranteed by the constitution with Christians constituting not less than 10% of the population, and that state protection would be available as well as reasonable internal relocation alternatives to the applicant to return safely to other part of Indonesia that any possibility of the loan shark being able to locate her can be safely dismissed, and concluded that she has failed to establish that she is entitled to non-refoulement protection in Hong Kong under any of the applicable grounds.

12.  On 9 February 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 affidavit of the same date she just exhibited copies of those decisions and other documents in her hearing bundle for her appeal before the Board.  

13.  On 1 June 2018 she submitted her skeleton submission in which she merely regurgitated her claim of fear that her life would be in danger due to harm from the loan shark and for being a Christian upon her return to Indonesia, and attached copies of some images of church attacks and bombing in Indonesia downloaded from Google. 

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 those 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.  In the applicant’s case, as noted above she did not put forward any ground for her intended challenge, while her reliance of those images of attacks and bombing of churches which had never been produced before the Board, but even if they were allowed to be admitted as evidence, and there was no such application before me, in my view they would not assist or advance any further her case or claim of fear of persecution on religious ground given the thorough and detailed analysis and reasoning set out by the Board in its assessment of such risk in paragraph (C) of its decision, in which the applicant did not identify any error of law or procedural unfairness, and in the absence of which I am unable to find any reasonably arguable basis to challenge such finding of the Board.

16.  Even if it is true that Christians may have been discriminated against or persecuted in Indonesia in the past and that such risk may still persist in some parts of the country, it does not constitute a sufficient basis for the applicant to challenge the Board’s finding that she failed to establish a well-founded fear of being harmed or killed accordingly upon her return to Indonesia, as it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular individual will be in danger of being harmed or subjected to torture upon his return to his home country:see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati & anor [2018] HKCA 461 (CACV 110/2018, 2 August 2018)

17.  Furthermore, 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.

18.  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.

19.  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