KASIRA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1179/2021

[2021] HKCFI 3547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1179 of 2021

____________________

____________________

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;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 2 September 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 September 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 4 February 2009, she did not depart and instead overstayed and was arrested by police on 6 November 2010, and 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 father or his creditor for failing to remit money to her father for repayment of his loan.  She was subsequently released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in Central Java, Indonesia.  After leaving school she worked as a domestic helper in Jakarta before coming to Hong Kong in 2005 to work as a foreign domestic helper, during which she was required by her father to make monthly remittance from her salary to help him with his loan repayments in Indonesia, but when her last employment was terminated in February 2009 and that she was no longer able to make any remittance to Indonesia, both her father and his creditor then made death threats against her, and so she was afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her arrest by the police, she then raised her non-refoulement claim for protection, for which she was subsequently released on recognizance pending determination of her claim, but which she failed to report recognizance on 9 October 2012 and disappeared thereafter until 31 January 2021 when she was re-arrested by police, and after she was referred to the Immigration Department to proceed with her claim, she then completed a Non-refoulement Claim Form (“NCF”) on 14 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

3.  By a Notice of Decision dated 25 May 2021 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no real intention on the part of her father or his creditor to seriously harm or kill her upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from them and that since 2016 there had been no further threats from either of them, that in any event her problem with them was a private monetary dispute 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 275 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 part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her father or his creditor to locate her.

5.  On 7 June 2021 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 30 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 11 August 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

6.  In its decision the Board found various discrepancies and oddities in the Applicant’s evidence on her claim but gave her the benefit of the doubt by accepting her claim of fear of harm form her father and his creditor over his outstanding debts, but found no further threats from either of them since 2016 and doubted that they would still have any adverse interest in her after all these years, and that in any event it was a private monetary dispute between them without any official involvement that state/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 area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

7.  On 23 August 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

(1)     That the Board reached the decision wrongly in assessing her non-refoulement claim;

(2)     That the decision was not reasonable or fair as required by the Wednesbury test;

(3)     That the decision failed to take into account of her right to life must be protected from extra-judicial killings which she may face if deported back to her home country.   

8.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision Wednesbury unfair or unreasonable, or how would extra-judicial killings be relevant to her case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable, 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 either.

9.  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. 

10.  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.                 

11.  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. 

12.  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