TINA KURNIASIH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 475/2018

[2020] HKCFI 1682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 475 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Indonesia who last arrived in Hong Kong in August 2014 with permission to work as a foreign domestic helper up to the expiration of her employment contract on 24 June 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 31 May 2016, she did not depart and instead overstayed and was arrested by police on 12 September 2016.  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 creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Ngasiman, District Karang Malang, Kecamatan, Kab Ngawi, East Java, Indonesia.  After leaving school she sold vegetables for a living in her home village, and married her husband in 2006.

3.  In 2008 she started a garment business with her parents by borrowing a loan from a local money-lander guaranteed by their house and repayable within 2 years at 10% interest payable on monthly basis until full payment of the loan.

4.  Initially their business ran smoothly and they were able to make the monthly interest payment to the money-lender without difficulty, but by late 2009 their business turned poor that it was eventually closed down.  As a result they were unable to make any payment towards their loan.

5.  One day in December 2009 the money-lender came with several men to their home to demand for repayment of the loan, and when they were unable to do so, they were warned that if no repayment soon there would be serious consequences.

6.  Two weeks later the money-lender returned with his men, and when the Applicant and her parents were still unable to make any payment, he grabbed her by her hair and slapped her violently, but when her brother tried to intervene, they beat him so severely that he lost consciousness and fell to the floor.

7.  After the creditor left with his men, the Applicant and her parents took her brother to the hospital, but when they were unable to pay for the operation, they sent her brother home where he later died from severe blood loss.

8.  Two weeks later the money-lender and his men came and took important documents from the Applicant and burnt all of them in front of her house.

9.  In late 2009 the money-lender took possession of their house and sold it, but when the proceeds were still not enough to pay off the entire loan, he threatened to inflict further violence on the Applicant and her family, and it was only after the village head intervened that he agreed to allow the Applicant further time to pay off the remaining balance of the loan.

10.  Fearing further violence from the money-lender, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, and so on 20 January 2011 she departed for Hong Kong to start her first employment contract, but when she returned to Indonesia for holiday in 2014, she ran into the money-lender who again threatened to kill her unless the loan was paid up soon.

11.  Thereafter the Applicant returned to Hong Kong for her second contract, but when it was prematurely terminated on 31 May 2016, she did not depart and instead overstayed, and upon her subsequent arrest at a restaurant for undertaking unauthorized work and was facing a deportation order, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 20 February 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

12.  By a Notice of Decision dated 15 March 2017 the Director of Immigration (“the 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”).

13.  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 there will be any real risk of her being harmed or killed by her creditor upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there was no reliable evidence of any real intention on his part to seriously harm her other than to put pressure on her to repay her loan, that it was a 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory of more than 1.8 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other part of Indonesia away from her home district in large cities such as Surabaya where it would be difficult if not impossible for her creditor to locate her.

14.  On 21 March 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 22 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 19 March 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

15.  In its decision the Board found the Applicant’s evidence at the appeal hearing exceptionally vague, internally incoherent, evasive and entirely different in relation to the core and material elements from that put forward to the Director with her initial application, and when these difficulties were put to her, she had no explanation, and in the light of such difficulties it reached the undoubted conclusion that she is not a witness of truth and that no credence whatsoever can be attached to any of her claim that it therefore failed on all the applicable grounds.  

16.  On 23 March 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 merely repeated her claim of fear of harm from her creditor as before without putting forward any valid or proper ground for her intended application, and in the absence of any error of law 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.  

17.  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.

18.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 34 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, 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.

19.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s 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.

20.  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.

21.  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