PUJI LESTARI TUMIJAN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2065/2018

[2020] HKCFI 2282

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2065 of 2018

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 (“A1”) is a 42-year-old national of Indonesia who last arrived in Hong Kong on 4 February 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 16 August 2009 or within 2 weeks of its early termination, but when it was prematurely terminated on 28 November 2008 after she became pregnant, she did not depart and instead overstayed and on 3 February 2009 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her stepfather and brothers over their religious and other disputes, and in April 2009 after she gave birth to her son the 2^nd Applicant (“A2”), she also raised a torture for him on the same basis, and when their torture claims were rejected, they then sought non-refoulement protection on the same basis.  They were subsequently released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Village Panjer Rejo, Rejotangan Sub-district, Tulungagung Regency, East Java Province, Indonesia where she and her brother and parents were all Christians, but after her father passed away and her mother remarried a Muslim and moved the family to live with him in Penataran Nglegok Blitar, East Java, and when her mother and brother later also converted to Muslim but the Applicant refused, her stepfather started to dislike her, and to avoid conflicts she therefore stayed with her grandparents in Rejotangan.

3.  In 1990 when A1 completed her primary education and expressed her wish to live with her mother, her stepfather objected and even beat her that she had to continue to stay with her grandparents.

4.  After she finished schooling in 1993, A1 worked in a factory, but when her stepfather arranged for her to marry his friend’s son, and when she refused, again her stepfather beat her until she yielded to his demand and married her husband later in the same year.

5.  Her marriage however did not last long and in 1998 they separated and A1 then went to work as a domestic helper in Malaysia, and in April 2002 when she returned to Indonesia, she discovered that her husband had divorced her, and when her brother started asking her for money and when she refused, he together with her stepfather beat her with wooden sticks and threw away and burned her belongings, for which they were subsequently arrested by the police, but as A1 feared that they would come after her after their release on bail, she therefore fled to Bali and later to Singapore where she worked as a domestic helper before coming to Hong Kong in 2005 to also work as a foreign domestic helper.

6.  While in Hong Kong A1 formed a relationship with a Bangladeshi man, and later in 2008 when she became pregnant and her employment was terminated in November 2008, she did not depart Hong Kong and instead overstayed until 3 February 2009 when she surrendered to the Immigration Department and raised her torture claims for herself and A2 after his birth, and after their torture claims were rejected, they then sought non-refoulement protection, for which A1 completed a Supplementary Claim Form for herself and A2 on 4 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 21 February 2017 the Director of Immigration (“the Director”) rejected the Applicants’ claim on all the remaining applicable grounds other than torture risk but including 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 Applicants’ claim and assessed the level of risk of harm from A1’s stepfather and brothers upon their return to Indonesia as low due to the absence or low intensity and frequency of past ill-treatment from them, that A1’s problems with her stepfather and brothers were private family disputes 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 (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other part of Indonesia away from A1’s home district in large cities such as Surabaya or Bali where she had stayed before without incidents and where it would be difficult if not impossible for A1’s stepfather or brothers to locate them.

9.  On 6 March 2017 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 9 April 2018 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 24 August 2018 their appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted that A1 may have had various problems with her stepfather and brothers but found they were private family disputes without any official involvement that state/police protection would be available to A1 upon her return to Indonesia, and with reasonable internal relocation for her to move safely with A2 to other area away from her home district without any risk of being located by her stepfather or brothers that the Applicants’ claim for non-refoulement protection failed on all applicable grounds.  

11.  On 28 September 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affidavit of the same date she put forward the following grounds for their intended challenge:

(1) procedural impropriety in failing to conduct sufficient inquiry into the relevant COI conditions;

(2) procedural impropriety/irrationality in failing to give reasons for their assessment of lack of BOR 3 risk and/or sufficient basis to support a conclusion of lack of BOR 3 risk;

(3) error/misdirection in law in failing to take into account the considerations of psychological strain and threats to A1 personally or threats to kill her directly;

(4) error/misdirection in law in failing to apply or properly apply the UN Committee General Comment No. 2 concerning the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizens which must be effective in any event;

(5) procedural impropriety in failing to consider the concept of extended state acquiescence; and

(6) procedural impropriety in failing to assess the fear of A1 properly that she will not be able to follow her religion freely as her home country is a Islamic country where she and A2 will risk being tortured and assaulted for religious reason.

12.  These are however all just broad and vague assertions of the Applicants containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Director or the Board had erred in their decisions, or in what way did they fail to conduct sufficient enquiry into the relevant COI regarding their home country or being selective or improperly rely on irrelevant COI, or what relevancy was the concept of state acquiescence to their claim, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicants.  As such and in the absence of any error of law or procedural unfairness in their process before the Director or the Board or in their decisions being clearly and properly identified by the Applicants, I do not find any of their grounds reasonably arguable for their intended challenge.

13.  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.

14.  In the Applicants’ 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 their claim 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.     

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 Applicants’ claim.

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