FITRIA AIDUL FITRI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 323/2019

[2022] HKCFI 1065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 323 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 35-year-old national of Indonesia who last arrived in Hong Kong on 4 July 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 July 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 5 July 2014, she did not depart and instead overstayed and was arrested by police on 16 August 2014.  After 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 parents’ creditor over their outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Madiun, East Java, Indonesia. After leaving school she first worked as a housemaid in Jakarta, and then as a foreign domestic helper in Taiwan and Hong Kong, remitting money to her parents in Indonesia every month from her salary to assist them to repay their loan borrowed from a local loan shark in 2011.

3.  However, after her last employment in Hong Kong was terminated on 5 July 2014, she was unable to remit any money to her parents in Indonesia, and as a result her parents defaulted on their loan repayments, for which the loan shark would send men to threaten them, and also threatened the Applicant on the phone that she should help her parents to repay their loan, and so the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and was subsequently arrested by the police.

4.  One day in December 2014 the Applicant was told by her mother that the loan shark had sent men to threaten her parents, during which one of them stabbed her father with a machete that he later died from his wound, and her mother therefore warned her not to return to Indonesia or else she would also be killed, and so the Applicant sought non-refoulement protection from the Immigration Department, for which she completed a Non-refoulement Claim Form (“NCF”) on 16 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 24 July 2018 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that her perceived fear of harm from her parents’ creditor is real and foreseeable upon her return to Indonesia in the absence of any reliable evidence of such threats or any past ill-treatment from the creditor or the creditor’s followers against her, that in any event it was a private monetary dispute between her parents and their creditor without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia 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 1.8 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 or Surabaya where it would be difficult if not impossible for her parents’ creditor to locate her.

7.  On 2 August 2018 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 8 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s claim of threats made by the loan shark against her parents over their outstanding debts, but doubted that the loan shark would have any adverse interest in the Applicant let alone make threats against her on the phone from Indonesia and in particular the assertion that her father had been killed but no report was ever made to the police over such a serious matter, and found in any event that it was a private monetary dispute between her parents and their creditor 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 by her parents’ creditor that her claim for non-refoulement protection failed on all applicable grounds.     

9.  On 4 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but as that decision had been superseded by her subsequent appeal to the Board, and is therefore no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549, I therefore treat her application as one against the Board’s decision, but for which 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 that she does not want to return to her home country as her life is still in danger there, 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.

10.  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.

11.  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 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.  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