AISAH v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 1673/2021 [2022] HKCFI 101 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1673 of 2021 BETWEEN Aisah 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 (counsel for) the Applicant in open court / the Applicant being absent in open court; Order by Deputy High Court Judge Bruno Chan: Leave to apply for judicial review refused. Observations for the Applicant: The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 6 March 2018 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 contract expired on 11 March 2021, she did not depart and instead overstayed, and on 18 April 2021 she was arrested by police for the offences of soliciting for an immoral purpose and breach of condition of stay for which she was subsequently convicted and sentenced to prison for 2 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by the creditors of her former husband and/or her mother over their unpaid debts. The Applicant was born and raised in Desa Cidurian, Kab Pringsewu, Kec Pagelaran, Lampung, Indonesia. After leaving school she worked as a domestic helper in various places, and in 1993 married her husband who however turned out to be a gambler frequently relying on borrowing money for his gambling habit. In 2009 her husband again borrowed money from a local loan shark and forced the Applicant to be his loan guarantor, but one year later in 2010 he just left and disappeared, and soon the loan shark sent men to come looking for him, and when they were unable to find him, they threatened the Applicant to repay the loan as his guarantor, and so to avoid their threats, the Applicant in 2011 left Indonesia to work in Singapore until 2017 when she came to Hong Kong to start her employment as a foreign domestic helper. In 2019 while the Applicant was working in Hong Kong, she was told by her mother that she was having debts problem with her creditor who had demanded the Applicant to repay her mother’s debts, and so after her last employment contract expired in March 2021, the Applicant was afraid to return to Indonesia, and so she overstayed in Hong Kong, and upon her arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 13 August 2021 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”). 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 the creditors of her former husband or her mother upon her return to Indonesia as low due to the absence of or low frequency or intensity of past ill-treatment from them, that her claimed problems with those creditors of her former husband or her mother were private monetary disputes 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 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 perceived enemies to locate her. On 30 August 2021 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 21 October 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 4 November 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director. In its decision the Board accepted the Applicant’s evidence of certain debts problems but found inconsistencies and implausibility in her claim of fear of harm from those creditors of her former husband or her mother that it doubted the credibility of such claim, and that in any event that they were private monetary disputes without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds. On 9 December 2021 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, 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. 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. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her 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. 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. 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 6th day of January 2022. (K.H. LI) 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 6 January 2022 Aisah 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 6 January 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18630/21/8/218/I2183 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 997/21 (Formerly RBCZ 10946/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1