YUNITA FRESTIKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1250/2019

[2023] HKCFI 1227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1250 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 34-year-old national of Indonesia who last arrived in Hong Kong on 25 March 2016 as a visitor with permission to remain as such up to 24 April 2016 when she did not depart and instead overstayed, during which she formed a relationship with a local resident, and when she later became pregnant with their child, she on 23 January 2017 surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband over her said relationship and/or by her creditor over her outstanding debts, and after given birth to her son later in July 2017, she also raised a non-refoulement claim on his behalf on the same bases that their claims were jointly assessed by the Immigration Department.

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

3.  To help out with the family’s expenses, the Applicant in 2011 started to work as a foreign domestic helper in Hong Kong, during which her relationship with her husband started to deteriorate.

4.  In early 2013 in order to help pay for the medical expenses of their daughter’s surgery, the Applicant borrowed a loan from a local money-lender in her home district with interest charged on the loan payable every month until discharge of the loan, and which she managed to make by monthly remittance from her employment in Hong Kong.

5.  However, after her last employment was terminated in June 2015, she did not return to Indonesia and instead went to Macau to wait for her next employment, but when it was not forthcoming, and when she started to default with her interest payments, her creditor came to her family in Indonesia and threatened to kill her over her outstanding loan should she return to Indonesia, and on 25 March 2016 she travelled from Lowu to Hong Kong as a visitor during which she met and formed a relationship with a local resident and therefore overstayed in Hong Kong, and after she became pregnant with her son she then surrendered to the Immigration Department and raised her non-refoulement claim for protection.

6.  On 29 April 2017 she gave birth to her son in Hong Kong, and in August 2017 when she informed her husband in Indonesia thereof, he became furious and threatened to kill both of them if they returned to Indonesia, and so the Applicant also included such threats in her claim and raised a similar claim for her son on the same basis, and for which she completed a Non-refoulement Claim Form (“NCF”) on 8 January 2018 for herself and her son and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 31 January 2018 the Director of Immigration (“Director”) rejected the claims of the Applicant and her son 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant and her son and assessed the level of risk of harm from her former husband or her creditor upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill either of the Applicant or her son, that in any event these were private domestic or monetary disputes between them without any official involvement that state or police protection would be available to the Applicant and her son 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 with her son 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 former husband or creditor to locate them.

9.  On 12 February 2018 the Applicant lodged an appeal for herself and her son to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but subsequently withdrew the appeal for her son upon his right of abode in Hong Kong being confirmed by the Immigration Department, and hence she only proceeded with her own appeal only before the Board, and for which she attended an oral hearing on 6 March 2019 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.

10.  In its decision the Board accepted the Applicant’s claim of fear of harm from her former husband, whom she confirmed at the hearing that she has divorced, and from her creditor but found no evidence of any real intention of either of them to seriously harm or kill her, and that her problems with them were private domestic or monetary disputes 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 without any risk of being located by her former husband or creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 9 May 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 repeated her claim as before and that she has a baby to take care of but without providing any further details or particulars or elaborations 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 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.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision 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 him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  Furthermore, it has also been well established by the Court of Final Appeal in the cases of Comilang and Anor v Director of Immigration, and Luis & Others v Director of Immigration, FACV Nos. 9 and 10 of 2018, [2019] HKCFA 10, 4 April 2019, that a person who has no right to enter or remain in Hong Kong cannot circumvent that position by relying on the rights of his or her own child, and hence it is not open to the Applicant to rely on her need to remain in Hong Kong to look after her son to seek non-refoulement protection or to raise it to argue for her intended challenge of the Board’s decision.

15.  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.

16.  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 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