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HCAL 652/2018
[2020] HKCFI 2139
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 652 of 2018
BETWEEN
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Titin-Anita-Nurjanah
alias Nurjanah Titin Anita
alias Titin Anita Nurjanah |
Applicant |
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Torture Claims Appeal Board |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 1 September 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract, but when her last contract was prematurely terminated on 29 August 2015, she did not depart and instead overstayed and after she was intercepted by Immigration Department on 5 December 2016, 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 for failing to give him money and/or by her creditor for failing to repay her loan. She was subsequently being released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Sumedang, Jawa Barat, Indonesia. After leaving school she worked as a tailor to earn her living. In 1995 she married her husband and moved to live with him in JL Pangaritan, Bandung, West Java and raised a family of two children.
3. Shortly after marriage her husband borrowed money from his family to start a business making aluminum lid, and when her husband’s family asked for repayment of the loan, her husband would put up all sorts of excuses and just promised that he would repay the money in future.
4. In 2006 the Applicant suspected that her husband was having an affair with another woman and demanded for a divorce, but her husband refused and turned violent by beating her whenever they quarreled causing her bruises all over her body, of which she however never reported to the police.
5. In February 2007 her husband demanded the Applicant to borrow a loan from the local loan shark so that he could repay his family, and for which the Applicant had to repay by instalments with money from their business.
6. However, after their business went down in mid-2007, the Applicant was unable to make any repayment of her loan, and when the loan shark threatened to kill her, she decided to come to Hong Kong to work as a foreign domestic helper so that she could repay her loan from her income, during which her husband also constantly demanded money from her with threats of violence if she failed to remit money to him, but when her last contract was prematurely terminated on 29 August 2015, she was afraid to return to Indonesia for fear of being harmed or killed by her husband or the loan shark and therefore overstayed in Hong Kong, and upon her arrest by the Immigration Department she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 31 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 26 May 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 and 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”).
8. 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 husband or the loan shark upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention on their part to seriously harm or kill the Applicant other than to demand money from her, that her problems with them were domestic or monetary disputes without any official involvement that state/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 1.9 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 area away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or her creditor to locate her.
9. On 6 June 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 9 February 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 4 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
10. In its decision the Board accepted the Applicant’s claim of being abused by her husband and threatened by the loan shark in Indonesia, but found her problems with them were domestic or personal monetary disputes with no official involvement that state/police protection would be available to her as well as reasonable internal relocation within Indonesia for her to move safely away from her home district to other areas in large cities such as Jakarta where she can re-establish her life and work without any risk of being located by her husband or the loan shark that her claim for non-refoulement protection failed on all applicable grounds.
11. On 17 April 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 attached copies of those decisions and other previous documents but without putting forward any proper or valid grounds 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 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.
12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.
13. The fact is that it has been established by both the Director and the Board in their decisions 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.
14. 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.
15. 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.
Dated the 31st day of August 2020.
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(NG Hang-yin)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 31st August 2020
Titin-Anita-Nurjanah alias Nurjanah Titin Anita
alias Titin Anita Nurjanah
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 31st August 2020
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 7365/17/6/61/I728
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 431/17
(Formerly RBCZ 10150/17)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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