ANDRI-RAKASIWI ALIAS ANDRI RAKASIWI ALIAS RAKASIWI ANDRI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 267/2019

[2020] HKCFI 2438

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 267 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

The application for leave to apply for judicial review dismissed.

Observations for the Applicant:

1.  The Applicant is a 31-year-old national of Indonesia who first arrived in Hong Kong in 2010 with permission to work as a foreign domestic helper on condition that she shall depart upon the expiration of her employment contract or within 14 days of its early termination, but when her last employment contract was prematurely terminated on 3 March 2016, she departed for Mainland China and returned on 24 March 2016 with permission to remain as a visitor up to 23 April 2016 when she did not depart and instead overstayed and was arrested by police on 7 January 2017. 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 uncle and/or his creditor for failing to repay his loan. She was subsequently released on recognizance pending the determination of her claim.     

2.  By a Notice of Decision dated 27 June 2018 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 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”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her uncle or his creditor upon her return to Indonesia as low due to the absence of any past ill-treatment from them, that her problems with them were private monetary disputes 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 uncle or his creditor to locate her.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which she attended an oral hearing on 16 October 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 24 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

5.  On 28 January 2019 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 repeated her claim that she would be killed by her uncle or his creditor if she returned to her home country without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

6.  However, before her application could be dealt with by the court, the Applicant on 3 September 2020 filed an affirmation requesting to withdraw her application as her “problem is finished” and that she wants to go back to her home country.

7.  In the premises and as the basis for her claim no longer exists, it would be appropriate that her application be dismissed rather than withdrawn, and accordingly I dismiss her leave application. 

Dated the 30^th day of September 2020.

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