|
HCAL 792/2018
[2020] HKCFI 2145
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 792 of 2018
BETWEEN
|
Indah Dwi Lestari |
Applicant |
|
and |
|
|
Torture Claims Appeal Board |
Putative Respondent |
|
and |
|
|
Director of Immigration |
Putative Interested Party |
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 36-year-old national of Indonesia who arrived in Hong Kong on 18 April 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 18 April 2013 or within 2 weeks of its early termination, but when her contract was prematurely terminated on 24 August 2012, she did not depart and instead overstayed in Hong Kong and was arrested by police on 24 November 2012. 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 maternal uncle who had sexually abused or molested her while she was in Indonesia. She was subsequently being released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Village Sumber Mulyo, Pesanggaran, Banyuwangi, East Java, Indonesia. After leaving school she worked as a sewing worker and lived with her parents in her home village.
3. Since about 2006 her maternal uncle who was in his 30s and lived next door would come to the Applicant whenever she was alone in her home to try to sexually molest her, but the Applicant was able to put up strong resistance, but despite her repeated complaints to her parents, they either did not believe her or just told her to stay away from her uncle.
4. One day in 2010 her maternal uncle again came to the Applicant’s home while she was alone and grabbed her from behind with a knife to try to rape her, and it was only after her neighbours had heard her screams and came over to her home that she was able to escape to hide in her grandmother’s place.
5. About a week later one night her maternal uncle sneaked into the Applicant’s bedroom and tried to rape her, and it was when her parents heard her screams that he fled from the place.
6. Upon realizing what her uncle had done but not wishing to bring the matter to the police, her parents advised the Applicant to leave the place by working as a foreign domestic helper in Hong Kong, and so on 18 April 2011 she departed for Hong Kong, but when her employment contract was prematurely terminated on 24 August 2012, she did not depart and overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 5 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 27 July 2017 the Director of Immigration (“the 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 and 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 Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her maternal uncle upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there was no evidence of any real intention on the part of her maternal uncle to harm or kill her or that he would still have any adverse interest in her after all these years, that it was a sexual abuse case without any official involvement that state/police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 the Applicant as an able-bodied adult with working experience to move to other parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her maternal uncle to locate her.
9. The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 26 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 9 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.
10. In its decision the Board accepted the Applicant’s claim that she may have been sexually abused or molested by her maternal uncle but found no evidence that he would still have any adverse interest in her after all these years, and that with state/police protection available as well as reasonable internal relocation for the Applicant to move safely to other parts of Indonesia away from her home village in some large cities without any risk of being located by her maternal uncle that her claim for non-refoulement protection in Hong Kong failed on all applicable grounds.
11. On 7 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that she has married a husband in Hong Kong and asked for time for her to get her visa from the Immigration Department without putting forward any valid or proper grounds 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 procedural unfairness in her process before the Board or in its decision, I do not find any reasonably arguable basis for her to challenge the finding of the Board.
12. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.
13. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm from her maternal uncle 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.
14. 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.
15. 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 31st day of August 2020.
|
(NG Hang-yin)
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 31st August 2020
Indah Dwi Lestari
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 31st August 2020
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 8080/17/8/118/I792
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1430/17
(formerly RBCZ 10872/17)
T6I92
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|