|
HCAL 8/2019
[2021] HKCFI 2586
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 8 of 2019
BETWEEN
|
Siti Rodiyah |
Applicant |
|
and |
|
|
Torture Claims Appeal Board |
1st Putative Respondent |
|
Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 26 March 2015 with permission to work as foreign domestic helper until the expiration of her employment contract on 26 March 2017 or within 14 days of its early termination, but when it was prematurely terminated on 28 June 2015, she did not depart and instead overstayed in Hong Kong, and on 28 August 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband over some domestic issues. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Kediri, East Java, Indonesia. After leaving school she went to work as a domestic helper in Taiwan, married her husband in 2001 in his home district in Ngoro, Jombang before resuming her job in Taiwan.
3. In 2006 she returned to Indonesia to give birth to their son, and assisted her husband’s business in making soya bean cake for sale, and in 2008 her husband’s father transferred his property to her and her husband before his death.
4. In 2011 her marriage started to deteriorate when she discovered that her husband was having an affair with another woman which led to frequent quarrels between them during which her husband would become violent by beating her with his fists and breaking things at home.
5. To avoid such abuse the Applicant in 2012 came to work in Hong Kong as a foreign domestic helper, but in 2013 her husband told her on the phone that he had decided to divorce her for another woman, and that he had already sold their property, but when the Applicant asked for her half share of the sale proceeds, he became angry and threatened to kill her when she returned to Indonesia over the dispute, and so when her last employment contract was terminated in June 2015, she was afraid to return to Indonesia and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 11 April 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”).
7. 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 is real and foreseeable upon her return to Indonesia as her husband had already left her for another woman and has had little contact with her since 2013 that it is doubtful that after all these years that he would still have any adverse interest in her, that in any event it was a private domestic dispute between them 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 260 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 former husband to locate her.
8. On 19 April 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 20 August 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 10 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
9. In its decision the Board accepted the Applicant’s claim of threats from her former husband due to their dispute over the sale proceeds of their property but found it was a private domestic monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia, and that there is no real risk of any harm from her former husband who has formed a new relationship with another woman and ceased any contact with her that it is doubtful that he would still have any adverse interest in her after all these years that her claim for non-refoulement protection failed on all applicable grounds.
10. On 3 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached copies of the decisions and her hearing bundle for her appeal before the Board but without putting forward any proper ground for her intended challenge, 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 Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
11. 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.
12. In the Applicant’s case, the fact is that it has been established by the Director in his decision 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, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
13. 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.
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 I accordingly refuse her leave application.
Dated the 2nd day of September 2021
|
(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
|
Sent to the Applicant on 2nd September 2021
Siti Rodiyah
Applicant’s ref. no.:
Nil |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2nd September 2021
Torture Claims Appeal Board
1st Putative Respondent’s ref. no.:
USM 11269/18/4/279/I1292
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 750/18 (Formerly RBCZ/12043/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|