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HCAL 1407/2024
[2024] HKCFI 2779
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1407 OF 2024
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BETWEEN
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Darmi |
Applicant |
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and |
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Torture Claims Appeal Board |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review be refused.
Observations for the Applicant:
1. The Applicant is a 46-year-old national of Indonesia who last arrived in Hong Kong on 21 July 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 7 November 2023, she did not depart and instead overstayed, and was subsequently arrested by police. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for refusing to resume their relationship.
2. The Applicant was born and raised in Magetan Regency, East Java Province, Indonesia. After leaving school she assisted in her parents’ bricks making business, married her husband and raised a family with 3 children in her home district.
3. Soon she discovered that her husband had a violent temper and was often abusive towards her by slapping and hitting her at will.
4. As her husband was often out of work, and in order to support their family, the Applicant in 2009 went to Singapore to work as a domestic helper, and in 2016 she started coming to Hong Kong to work as a foreign domestic helper.
5. Over the years and due to their lengthy separation, the Applicant decided that their marriage was at an end and suggested to her husband to have a divorce, but her husband became furious and accused her of having met another man, and insisted that he would not agree to any divorce.
6. Nevertheless the Applicant went ahead to instruct a lawyer in Indonesia for divorce on her behalf, and eventually obtained her divorce in 2020, and as a result her former husband was even more angry and threatened on the phone to kill her when she returned to Indonesia, and so after her last employment was terminated in November 2023, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 March 2024 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
7. By a Notice of Decision dated 24 April 2024 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”).
8. 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 former husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former husband to seriously harm or kill her other than angry words to press her to resume their relationship, that in any event it was a private dispute between the 2 of them only 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 279 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 areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her former husband to locate her.
9. On 2 May 2024 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 15 July 2024 before the Board during which she gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 23 July 2024, her appeal was dismissed by the Board which also confirmed the Director’s decision.
10. In its decision the Board accepted the Applicant’s claim of threats from her former husband over their divorce but found no reliable evidence of any real intention of him to seriously harm or kill her other than angry words to press her to return to him, and that in any event it was a private personal dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.
11. On 23 August 2024 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 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.
12. 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.
13. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real 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.
14. 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.
15. For all 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.
Dated the 10th day of October 2024
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 10 October 2024
Darmi
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10 October 2024
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 23550
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 641/24 (formerly RBCZ/5000657/24)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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