LASINI v. TORTURE CLAIMS APPEAL BOARD

HCAL 800/2021

[2021] HKCFI 2855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 800 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who first arrived in Hong Kong in 2005 with permission to work as a foreign domestic helper, and during her last employment contract she was arrested by police on 19 February 2018 for drugs trafficking for which she was convicted on 7 May 2019 and was sentenced to prison for 54 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her husband for her extra-marital affair with a Bangladeshi man in Hong Kong and/or by her fellow villagers for her drug offence which is contrary to the teachings of Islam. 

2.  The Applicant was born and raised as a Muslim in Ponorogo, East Java, Indonesia. After leaving school she married her husband and raised a family of 2 daughters in her home village.

3.  In 1997 she went to Singapore to work as a domestic helper, and in 2005 she started working in Hong Kong as a foreign domestic helper, during which she met a Bangladeshi man and soon formed a relationship with him, of which her husband later discovered in 2017 and made phone calls to her threatening to kill her with black magic over the affair, and after she was arrested by police on 19 February 2018 for drug trafficking for which she was subsequently convicted and sentenced to prison for 54 months, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 September 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 25 November 2020 the Director of Immigration (“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”).

5.  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 her fellow villagers upon her return to Indonesia as low due to the absence of any past ill-treatment from them, that in the absence of 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 267 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 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 perceived enemies to locate her.

6.  On 7 December 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 May 2021 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board.  On 20 May 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s evidence given in her appeal hearing about her claim of fear of harm from her husband by black magic over her extra-marital affair and from her fellow villagers over her drug offence in Hong Kong shifting, inherently inconsistent, defy logic and vague that it doubted the credibility of her non-refoulement claim, and that in any event in the absence of any evidence of 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 safely move to other area away from her home district without any risk of being located by her perceived enemies that her claim for non-refoulement protection failed on all applicable grounds.  

8.  On 1 June 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision in which she just stated that the Board reached the decision wrongly in assessing her non-refoulement claim in that it was not fair or reasonable but without providing any particulars or elaboration as to how it was so, nor did she put forth any other proper ground for her intended challenge. 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.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 14-17 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

11.  The fact is that it has also been established by both the Director and the Board in their respective decision 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.     

12.  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.

13.  Furthermore, the Applicant on 26 August 2021 wrote to the Court requesting to withdraw her application as she has already resolved her problem in her home country where there is no longer any threat or danger to her life and that it is safe for her to return to Indonesia.  

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that the basis for her claim no longer exists, I accede to her request and accordingly dismiss 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