HCAL 979/2022
[2022] HKCFI 3444
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 979 of 2022
| BETWEEN | | |
| Ervina Susanti | 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 42-year-old national of Indonesia who last arrived in Hong Kong on 15 November 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 5 February 2020 or within 14 days of its early termination, and on 4 February 2020 she submitted an application for change of employment, but was arrested by police on 20 October 2021 for the offence of making a false representation to an immigration officer for which she was subsequently convicted was sentenced to prison for 4 months, during which she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former boyfriend over their monetary dispute.
2. The Applicant was born and raised in Sukoreno, Umbulsari Jamber, East Java, Indonesia. After leaving school she married her husband and moved to live with him in Bali where they raised a family with a daughter.
3. In 2005 she first came to Hong Kong to work as a foreign domestic helper before moving to Singapore to work as a domestic helper until 2010 when she again returned to work in Hong Kong.
4. In 2016 she divorced her husband, and formed a relationship with Andik who assisted her in paying for her daughter’s school fees while she continued with her employment in Hong Kong.
5. In early 2022 she reconciled with her husband and decided to put an end to her relationship with Andik who however became furious and demanded that she repaid him the money he spent on her daughter’s school fees and threatened to kill her when she returned to Indonesia, and so when the Applicant was later arrested by police for making a false representation to an immigration officer and was subsequently convicted and sentenced to prison for 4 months, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 May 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
6. By a Notice of Decision dated 1 June 2022 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 there will be any real and substantial risk of her perceived fear of being harmed or killed by Andik upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence other than some hearsay of any real intention of Andik to seriously harm or kill her, that it was in any event 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 275 million people spread across a vast territory of more than 1.8 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for Andik to locate her.
8. On 9 June 2022 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 5 August 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 18 August 2022 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 fear of harm from Andik but found it was a private monetary dispute between the two of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia to negate such risk that her claim for non-refoulement protection failed on all applicable grounds.
10. On 21 September 2022 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 or in her supporting affirmation of the same date to which she just attached a copy of the decision 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 Board or in its decision 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
12. In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm 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, 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 11th day of November 2022.
| | (TAM Kam-man)
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
Notesfor the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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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 11 November 2022
Ervina Susanti
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 11 November 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 20434/22/6/69/I2750
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 348/22 (formerly as RBCZ 5000203/22)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1