SIHMIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 253/2024

[2024] HKCFI 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 253 OF 2024

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 be refused.

Observations for the Applicant:

1.  The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 5 July 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 2 August 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 July 2022, she did not depart and instead overstayed, and was arrested by police on 12 December 2022. After she was referred to the Immigration Department for investigation and was subsequently released on recognizance, she was again arrested by police on 21 December 2023 for undertaking unauthorized employment for which she was later convicted and sentenced to prison for 15 months, during which 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 creditor over her unpaid debts.

2.  The Applicant was born and raised in Pesanggaran, Banyuwangi, Java Timur, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.  To help with her family income, the Applicant in 2009 started to come to Hong Kong to work as a foreign domestic helper, but in 2016 her husband came down with a lung disease that required large sums of medical expenses, for which the Applicant had to borrow a loan from a local money-lender in her home district, with the loan to be repaid by monthly instalments with interest within 12 months.

4.  Her husband subsequently died from his illness, and thereafter the Applicant was unable to make any further loan repayments, and in 2017 her creditor started to send men to her family in her home district looking for her, and when they were unable to find her as she was then working in Hong Kong, they threatened her family and warned that they would kill her when she returned to Indonesia if her loan remained unpaid.

5.  Hence when her last employment was terminated in December 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 31 August 2023 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 28 September 2023 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 found no substantial grounds for believing that there will be any real and substantial risk of her perceived harm upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor to seriously harm or kill her, that in any event it was a private monetary dispute between the 2 of 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 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 Bali where it would be difficult if not impossible for her creditor to locate her.

8.  On 24 October 2023 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 27 December 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 January 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to overstay in Hong Kong to seek protection that it rejected the credibility of her claim of having incurred any debts or of any threats from any loan shark, that even if such risk were real that there was no reliable evidence of any real intention of the loan shark to seriously harm or kill her other than to press her to repay her loan, and that in any event such risk arose from a private monetary dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to if resorted to 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 that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 31 January 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim as before 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 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 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.

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 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