EMY NURYANI alias EMY-NURYANI alias EMY NURYANTI alias EMY-NURYANTI alias NURYANI EMY alias NURYANTI EMY v. TORTURE CLAIMS APPEAL BOARD

HCAL 1774/2019

[2024] HKCFI 2426

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1774 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Indonesia who last arrived in Hong Kong on 19 June 2009 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 July 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 24 August 2009, she did not depart and instead overstayed, and was arrested by police on 23 May 2011. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s landlord over her father’s outstanding rental payments or debts, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised as a Muslim in Desa Mguan, Sambit, Ponorogo Regency, East Java, Indonesia where her father rented a rice field from a neighbor in the village to grow and cultivate crops for sale, and for which he had to pay a monthly rent which he managed to do from the harvest of his crops.

3.  However, in 2009 due to poor harvest her father was unable to make enough money and started to default in his monthly rental payments for the rice field, and so he asked the Applicant who was then working in Hong Kong as a foreign domestic helper to help, and which she did by remitting money from her monthly salary to him in Indonesia to help him to make his rental payments, but after her last employment was prematurely terminated in August 2009, and when she was unable to remit any money to her father to help him with his rental payments, and when the landlord started to make threats against her and her family, the Applicant became afraid of returning to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 27 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  While released on recognizance pending the determination of her claim, the Applicant formed a relationship with a local Chinese man in Hong Kong with whom she later gave birth to a child in 2017, and for which she also added as a further basis for her non-refoulement claim that she fears of being harmed or discriminated by the local Muslim community for having given birth to a child out of wedlock contrary to the teachings of Islam.

5.  By a Notice of Decision dated 11 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 assessed the level of risk of harm from her father’s landlord upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her father’s landlord, that there is no evidence of any real intention of his landlord to seriously harm or kill her other than to press her to repay her father’s rents owed to him, that in any event it was a private monetary dispute between her father and his landlord 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 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 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 father’s landlord to locate her, while there was no legal or factual basis for her claimed fear of harm or discrimination from the local Muslim community over her being a single mother and with a child born out of wedlock or any evidence of such threats or risk other than her own speculations, and given the help and supports from the relevant government departments and NGOs for single mothers and illegitimate children similar in her situation in Indonesia that it is not accepted that she will face any such risk as claimed or that she would not receive help or state protection upon her return to Indonesia to also minimize or negate such risk.

7.  On 25 October 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 5 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 April 2019, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  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 father’s landlord or discrimination from the local Muslim community that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any threats from her father’s landlord against her or for that matter against her father or her family in Indonesia or of any attempt by them to seek help from the local police if such threats from her father’s landlord were real, and in any even event such risk even if real arose from some private monetary dispute between her father and his landlord only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia 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, while her claim of fear of being discriminated by the Muslim community over her giving birth to a child out of wedlock is not supported by any evidence or factual basis other than her own speculation and that relevant COI also show that supports and assistances for unwed mothers and illegitimate children from various governmental departments and NGOs would be available to the Applicant if needed upon her return to Indonesia to minimize or negate any such risk that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 26 June 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 her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor was she able to do so at the hearing of 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.

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 Board rejected her claim essentially on its adverse findings on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 44 – 68 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

12.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risks of harm in the Applicant’s claim even if real are localized ones 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 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.

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