BETY SUSANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 97/2019

[2021] HKCFI 3781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 97 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 the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Indonesia who arrived in Hong Kong on 26 June 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 June 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 6 January 2016, she did not depart and instead overstayed in Hong Kong, during which she formed relationships with some Indian men in Hong Kong out of which she gave birth to a daughter on 20 June 2017, and subsequently surrendered to the Immigration Department and raised a non-refoulement claim for both herself and her daughter on the basis that if they returned to Indonesia they would be harmed or killed by her parents for giving birth to a child out of wedlock and of mixed-race thus bringing dishonor to the family and/or facing discrimination by the community. They were subsequently released on recognizance pending the joint determination of their claim.

2.  The Applicant was born and raised in Selopuro, Blitar, Indonesia.   After leaving school she assisted in her parents’ grocery store in their home district, and in 2011 she went to Taiwan to work as a domestic helper before coming to Hong Kong on 26 June 2014 to commence her employment as a foreign domestic helper, but when her employment was prematurely terminated on 6 January 2016, she did not depart and instead overstayed in Hong Kong, during which she formed relationships with some Indian men and subsequently gave birth to her daughter on 20 June 2017, but when she informed her parents in Indonesia of it, they were furious and accused her of bringing dishonor to the family and vowed to disown them and threatened to kill both of them if they were to return to Indonesia, and so the Applicant surrendered to the Immigration Department and raised a non-refoulement claim for protection for herself and her daughter, and for which she completed Non-refoulement Claim Forms (“NCF”) on 22 December 2017 for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

3.  By a Notice of Decision dated 19 January 2018 the Director of Immigration (“Director”) rejected the claim of the Applicant and her daughter on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her daughter and found no substantial grounds for believing that they would be in danger of being harmed or killed by the Applicant’s parents or discriminated against by the Indonesian society upon their return to Indonesia due to the absence of any past ill-treatment from them, that it was a private family dispute between the Applicant and her parents without any official involvement that state or police protection would be available to the Applicant and her daughter if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in Indonesia to protect unwed mothers and illegitimate children and with supports and assistances from both government and NGOs available to assist the Applicant and her daughter as well as reasonable internal relocation permissible in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move with her daughter to other part of Indonesia away from her home district in large cities such as Bali or Jakarta where it would be difficult if not impossible for her parents to locate them.

5.  On 2 February 2018 the Applicant lodged an appeal for herself and her daughter to the Torture Claims Appeal Board (“Board”) against the Director’s decision, of which the Board did not find necessary to hold any oral hearing and dealt with their appeal in their absence and on paper, and on 30 October 2018 the Board dismissed their appeal and also confirmed the Director’s decision.

6.  In its decision the Board did not take issue with the Applicant’s claim as stated but agreed with the Director that the absence of any ill-treatment to the Applicant or her daughter from the Applicant’s parents or any other person in Indonesia does not put their case within any of the applicable risks, that their problem with the Applicant’s parents was a private family dispute without any official involvement that state or police protection would be available to them upon their return to Indonesia, and that with reasonable internal relocation available for the Applicant to move safely with her daughter to other area away from her home district without any risk of being located and without any undue hardship with the supports and assistances from both government and NGOs that their claim for non-refoulement protection failed on all applicable grounds.

7.  On 10 January 2019 the Applicant filed her Form 86 for herself only for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking review was given in her Form or in her supporting affirmation of the same date in which she just attached copies of those decisions but without putting forth any proper ground for her intended challenge, nor did she attend the hearing of her application to do so or to explain why she has not included her daughter in the application. As such I shall only deal with the application for herself only as so stated, and in the absence of any error of law or irrationality 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.

8.  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.

9.  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 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.     

10.  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.

11.  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