DWI-PUTRI-PRATIWI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]
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HCAL 1512/2023
[2024] HKCFI 2288
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1512 OF 2023
| BETWEEN | ||
| Dwi-Putri-Pratiwi | 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:
consideration of the documents only; or consideration of the documents and oral submissions by the Applicant in open court / the Applicant being absent in open court;
Order by Deputy High Court Judge Bruno Chan:
The application for leave to apply for judicial review be dismissed.
Observations for the Applicant:
1. The Applicant is a 27-year-old national of Indonesia who last arrived in Hong Kong on 30 June 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 5 July 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 16 May 2022, she did not depart and instead overstayed, and was arrested by police on 19 July 2022. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor for failing to repay her father’s outstanding debts. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Desa Nata Kecamatan Palibelo, Bima Nusa Tenggara Barat, Indonesia. After leaving school she worked as a domestic servant in her home district.
3. In 2019 her father borrowed a loan from a local money-lender and named the Applicant as his guarantor, and to assist her father to repay his loan by instalments, she therefore came to Hong Kong in February 2019 to work as a foreign domestic helper and to remit money to her father in Indonesia to enable him to make his monthly loan repayments.
4. However, her last employment was prematurely terminated on 16 May 2022 that she was therefore without income to remit money to her father in Indonesia, and when his creditor started to call her on the phone to threaten her, the Applicant was therefore afraid to return to Indonesia, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 August 2022 and attended screening interview before the Immigration Department with legal representation.
5. By a Notice of Decision dated 18 October 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”).
6. 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 father’s creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from his creditor, that there is no evidence of any real intention of his creditor to seriously harm or kill her other than to press her to repay her father’s debts, that in any event it was a private monetary dispute between her father and his creditor only 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 1.9 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 areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her father’s creditor to locate her.
7. The Applicant then 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 May 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 August 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.
8. In its decision the Board accepted the Applicant’s claim of fear of harm from her father’s creditor over her father’s debts but found no reliable evidence of any real intention of her father’s creditor to seriously harm or kill her other than to put pressure on her to send money to repay her father’s debts, and that in any event it was a private monetary dispute between her father and his creditor only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her father’s creditor that her claim for non-refoulement protection failed on all applicable grounds.
9. On 25 August 2023 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) That the Adjudicator did not consider the Applicant’s case properly or at all and directly dismiss it without even taking time to consider about the risk to her life;
(2) That the Adjudicator unreasonably refused to allow the Applicant to submit some documents in Indonesian without translation and refused to give her time to arrange for their translation; and
(3) That the interpreter did not help the Applicant at all and was impatient with her evidence given during the appeal hearing before the Board.
10. These are however all just bare and vague assertions of the Applicant without any necessary or relevant 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 in what way did the Adjudicator fail to consider her case properly or at all when the decision clearly reveals full details of her claim and evidence given by her during the hearing, while there is no evidence of any attempt of her to submit any further documents during the hearing when even up to now in her present application when she has not produced any or at least identified them that may support her complaint of not being allowed to do so, nor is there any evidence or details as to how she was unable to receive any assistance from the interpreter in the interpretation of her evidence given during her appeal hearing before the Board. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable 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 NupurMst v Director of Immigration[2018] HKCA 524.
12. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real 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.
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. Moreover, the Applicant recently on 12 June 2024 filed an affirmation requesting to withdraw her application as she now has no more problem returning to her home country.
15. In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.
| (Chung Lai Fan, Christine) 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
Form CALL-1