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HCAL 135/2019
[2021] HKCFI 3574
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 135 of 2019
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Dwi Nani Maryani |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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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 refused.
Observations for the Applicant:
1. The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 4 March 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 7 July 2011, but when her employment was prematurely terminated on 10 August 2010, she did not depart and instead overstayed and was arrested by police on 15 February 2012. 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 father or his creditor for failing to remit money to her father to assist him with the repayment of his loan. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Cilacap, Central Java, Indonesia. After leaving school she worked as a domestic helper in various places including Singapore, Jakarta and Malaysia before coming to Hong Kong in 2008 to work as a foreign domestic helper, during which she was required by her father to remit a large part of her salary to her parents in Indonesia every month to enable him to repay his loan borrowed from the creditor in their home village.
3. However, after her last employment was prematurely terminated on 10 August 2010 and when she was unable to remit any more money to her parents in Indonesia, both her father and his creditor had made threats against her on the phone, and so she was afraid to return to Indonesia and overstayed in Hong Kong, and after 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 22 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
4. By a Notice of Decision dated 18 January 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”).
5. In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that she would be in danger of being ill-treated or killed by her father or his creditor upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between her father and his creditor 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 that it would not be unduly harsh for the Applicant as an able-bodied adult with working 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 perceived enemies to locate her.
6. On 1 February 2018 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 29 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.
7. In its decision the Board found no reliable evidence of any real intention of the Applicant’s father or his creditor to seriously harm or kill her other than putting pressure on her to assist her father to repay his loan, and that in any event it was a private monetary dispute between her father and his creditor without any official involvement that state/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 area away from her home district in some large cities without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.
8. On 14 January 2019 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 or in her supporting affirmation of the same date in which she merely attached the hearing bundle of her appeal before the Board 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 director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
9. 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.
10. 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 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.
11. 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.
12. 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.
Dated the 26th day of November 2021
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(K.H. LI)
for Registrar, High Court |
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 his 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 26 November 2021
Dwi Nani Maryani
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 26 November 2021
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 10121/18/2/5/I1051
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 3870/17 (formerly RBCZ 10948/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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