DIANA BAIDA ROHMAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 121/2019

[2022] HKCFI 1228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 121 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 (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 31-year-old national of Indonesia who first arrived in Hong Kong in July 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 1 February 2017, she did not depart and instead overstayed, and on 21 February 2017 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 creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in Banyuwangi, Jawa Timur, Indonesia where her father was a farmer, but in March 2011 he met a traffic accident and broke his right leg which required an operation in the hospital, for which the Applicant borrowed a loan from a local money lender to be repaid within one year and with interest payable every monthly until discharge of the loan. 

3.  However, later when the Applicant and her family were unable to repay the loan, her creditor sent his men to make threats against them, during which the Applicant and her brother were beaten with wooden sticks, and after one occasion when she was abducted by her creditor who attempted to rape her but she managed to make her escape, the Applicant became fearful for her life and fled to Jakarta where she made arrangement to depart Indonesia for Hong Kong to work as a foreign domestic helper, which she did in July 2013, but when her last employment was terminated on 1 February 2017, she was afraid to return to Indonesia, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.  By a Notice of Decision dated 21 March 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”).

5.  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 she would be in danger of being harmed or killed by her creditor and the creditor’s followers upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm the Applicant other than to put pressure on her to repay her loan, that in any event it was a private monetary 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 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 creditor to locate her.

6.  On 29 March 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 23 August 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found inconsistencies, gap and credibility concerns with the Applicant’s evidence as to her claim that it did not find her to be a witness of truth and that she has fabricated her claim or exaggerated it in relation to her claim of harm from the loan shark that it concluded that there is not a real risk the Applicant would face any of the proscribed form of harm upon her return to Indonesia that her claim for non-refoulement protection failed on all the applicable grounds.

8.  On 14 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)   Procedural impropriety in the Board’s failure to properly apply paragraph 2 of the UN Committee against Torture General Comment No. 2 whereby satisfaction of a National state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event the Board’s decision which focused on whether such reliefs showed merely signs of positive improvement;

(2)   Procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(3)   Procedural impropriety/irrationality in the Board’s failure to provide reasons for assessment of lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk in the applicant’s claim;

(4)   Error/misdirection in law in the Board’s failure to take into account the consideration of psychological strain and threats to the Applicant personally or threats to her directly to kill her;

(5)   Procedural impropriety in the Board’s failure to consider the Applicant’s fear that the notorious money lender had attempted to rape her and kidnap her, and that she cannot live her life peacefully in her home country and that her family cannot protect her and that in her circumstances that she cannot relocate to or to establish in other part of her home country;

(6)   Error/misdirection in law in that the Board stated that her claim is private in nature and a monetary dispute or that she suffered domestic violence or that she was safe because she ran away from her home as she has the right to live safely in the world that the Board had failed to consider her fear; and

(7)   That there was no sufficient basis for the Board to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon refoulement.  

9.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision or why they are relevant or applicable to her case. 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 of these grounds reasonably arguable for her intended challenge, nor do I find any reasonably arguable basis for her intended application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 57 – 70 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 his 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.  

12.  The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true 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.  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.  Furthermore, the Applicant recently on 11 April 2022 wrote to the Court to request to withdraw her application as her problem in her home country has been resolved and that she will not face any problem upon her refoulement to Indonesia.

15.  In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that she will not face any problem upon her refoulement to her home country, I 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