WINARSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2053/2018

[2022] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 2053 of 2018

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 (counsel for) 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 45-year-old national of Indonesia who arrived in Hong Kong on 12 December 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 12 December 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 February 2015, she did not depart and instead overstayed, and on 2 September 2016 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a local loan shark over her family’s outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Magelang, Indonesia. After leaving school she married her husband and raised a family with 2 children until 2005 when she left her husband to return to her parents’ home and assisted her parents with their farming in her home village.

3.  In January 2013 her father had a traffic accident and required expensive operation in the hospital, for which her family borrowed a loan from a local loan shark with monthly interest payments until discharge of the loan, but when their crops failed to make any profit and they had difficulty making the loan repayments, the loan shark sent men to beat the Applicant and her mother with threats to kill them if they failed to make their loan repayments, and so to help her family the Applicant went to Singapore in August 2013 to work as a domestic helper before coming to Hong Kong in December 2014 to work as a foreign domestic helper during which she would remit money from her monthly salary to her parents to assist them with their loan repayments.     

4.  However, after her last employment was prematurely terminated on 18 February 2015, she was unable to remit any money to her parents for their loan repayments, and when she heard that the loan shark had again sent men to threaten to kill her and her family, the Applicant was afraid to return to Indonesia, and so she overstayed in Hong Kong, and on 2 September 2016 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 23 April 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her creditor and his followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant other than to put pressure on her to repay her loan, that in any event it was a private monetary dispute between them 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 Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

7.  On 3 May 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 16 July 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence given at the appeal hearing, which was different from those given previously to the Director that it doubted the credibility of her claim of fear of harm from her parents’ creditor over their outstanding debts, and that in any event it was a private monetary dispute between her parents and their creditor without any official involvement that state/police protection would be available to the Applicant if needed upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located by her parents’ creditor that her claim for non-refoulement protection failed on all applicable grounds.   

9.  On 27 September 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 affirmation of the same date she just attached copies of the decisions but without putting forward 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.

10.  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.

11.  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 true 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.

12.  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.

13.  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