TUMINI NEVIA SARI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 2627/2018

HCAL 582/2020

(Consolidated)

[2020] HKCFI 2514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2627 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 582 OF 2020

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 Applicants:

1.  The 1^st Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 2 September 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 September 2016 or within 2 weeks of its early termination, but when it was prematurely terminated on 22 August 2015 she did not depart and instead overstayed in Hong Kong, during which she met and formed a relationship with her boyfriend, and upon being pregnant with his first child, she surrendered to the Immigration Department on 16 November 2015 and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor for failing to repay his loan and/or by her father and brothers for ruining the family’s honour due to her pregnancy from a relationship outside of marriage, and upon giving birth to her son on 29 March 2016, and later to her daughter on 17 July 2018, she also raised  a similar claim for each of them on the same basis of her claim.

2.  The 1^st Applicant was born and raised in Desa Manggarawan, Labuhan Ratu, Wai Jepara, Lampung Timur, Indonesia in a Muslim family.  After leaving school she worked as a domestic servant in various places including Malaysia and Singapore before returning to Indonesia in 2009 where she continued to engage in similar work as her family’s main breadwinner.

3.  One day in late 2011 her father’s creditor came to demand for repayment of his loan, and when the creditor realized that she was in fact the main breadwinner of the family, he turned his threats against her, and warned her that she would be in big trouble if she failed to assist her father to repay his loan.

4.  In order to earn more money to help her father with his loan repayment, the 1^st Applicant therefore came to Hong Kong in January 2012 to work as a foreign domestic helper and to remit money to her father every month to enable him to pay the monthly interests charged on his loan.

5.  However, in 2015 she met and formed a relationship with her boyfriend in Hong Kong whom she later married on 29 December 2016, and when she first became pregnant with her son and as a result her employment contract was terminated in August 2015, she was unable to remit any money to her father who became furious when he learnt about her pregnancy and threatened to kill her for ruining the family’s honour, she became fearful of harm from her family and her father’s creditor that she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection for herself, and also for her son and daughter upon their birth, for which she completed a Non-refoulement Claim Form jointly for herself and each of her children on 11 October 2016 and 15 February 2019 respectively, and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By Notices of Decision dated 30 November 2016 and 28 March 2019 the Director of Immigration (“the Director”) respectively rejected the claims of the 1^st Applicant and of her son and 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”).

7.  In both decisions the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the 1^st Applicant’s family or her father’s 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 their disputes were private family or monetary matters without any official involvement that state or police protection would be available to the Applicants 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 spread across a vast territory that it would not be unduly harsh for the 1^st Applicant as an able-bodied adult with working experience to move with her children 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 family or her father’s creditor to locate them.

8.  On 9 December 2016 and 10 April 2019 the 1^st Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) respectively against the Director’s two decisions, and for which she attended oral hearings on 6 March 2018 and 13 September 2019 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 20 June 2018 and 27 November 2019 respectively their appeals were dismissed by the Board which also confirmed the decisions of the Director.

9.  In both decisions the Board accepted the 1^st Applicant’s claim of problems with her father and family as well as his creditor but found state/police protection would be available upon her return to Indonesia as well as reasonable internal relocation for her to move safely with her children to other area away from her home district without any risk of being located by her family or her father’s creditor, and with various women organizations available to help them to adjust to their lives in Indonesia that their claims for non-refoulement protection failed on all applicable grounds.         

10.  On 21 November 2018 the 1^st Applicant filed a Form 86 under HCAL 2627/2018 for herself and her son for leave to apply for judicial review of the Board’s First Decision, and on 9 April 2020 filed a second Form 86 under HCAL 582/2020 for her daughter for judicial review of the Board’s Second Decision, but no ground for seeking relief was given in either Form, and in her supporting affirmations for both applications she merely repeated her claim that their lives would be in danger in Indonesia without putting forward any proper grounds for their intended challenges.

11.  As the facts and basis of both claims of the 1^st Applicant and her children are essentially the same, and with her consent, I made an order on 8 September 2020 that their applications be consolidated for hearing, but as noted above in the absence of any error of law or procedural unfairness in either of the Board’s decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenges of either decision of the Board.     

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 Applicants’ 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 their claims is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them 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 Applicants’ claims.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended applications for judicial review, and I accordingly refuse their leave applications.

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