SITI MARFUNGAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1566/2019

[2024] HKCFI 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1566 OF 2019

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 refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Indonesia who last arrived in Hong Kong on 6 September 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract as extended on 16 December 2015 or within 14 days of its early termination, but when it was prematurely terminated on 29 March 2015, she did not depart and instead overstayed, and was arrested on 14 May 2015 for overstaying her visa and for undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 2 months, and upon her release and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Banyumas, Central Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.  During the marriage the Applicant discovered that her husband was an alcoholic and a gambler frequently without any job or income but was frequently in debts, and when he was drunk or pressed by his creditors for repayments, he would become violent and abusive towards the Applicant by slapping her around and hitting her at will, and by demanding her to go out to work to support his vices or else he would kill her or sell her to his creditors as prostitute.

4.  To avoid her husband’s threats and abuses the Applicant in 2008 went to work in Singapore as a domestic helper and to remit money to him in Indonesia for his use, and in 2010 she came to Hong Kong to work as a foreign domestic helper and continued to remit money to her husband, but after her last employment was terminated in March 2015 and was therefore without any income to send any money to her husband, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 July 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 10 August 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 ground for believing that she would be in danger of being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that after all these years since she last left the country or contacted her husband that it is not accepted that he would still have any adverse interest in her, that in any event it was a private domestic 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 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

7.  On 23 August 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 17 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 May 2019 her appeal was dismissed by the Board.

8.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband that caused her to overstay in Hong Kong to seek protection, and that in any event if such risk is real that it arose from a private family dispute between her and her husband 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 for her to move safely to other part 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.

9.  On 10 June 2019 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 stated that she rejects the decision as it disregarded her dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor did she put forward any proper ground for her intended challenge or request any oral hearing for her intended 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.

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 correctly established by both the Director and the Board in their respective decision that the risks 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.

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 accordingly I refuse to grant leave and dismiss her 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