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

HCAL 973/2023 [2024] HKCFI 1423 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 973 OF 2023 BETWEEN Sarinah Applicant and Torture Claims Appeal Board and Putative Respondent 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: The Applicant is a 31-year-old national of Indonesia who last arrived in Hong Kong on 25 June 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 June 2021 or within 14 days of its early termination, but upon completing her employment contract on 25 June 2021, she did not depart and instead overstayed, and almost one year later on 9 June 2022 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband’s creditor over his debts. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised in Lombok Timur, Pringga Baya, Indonesia. After leaving school she worked as a housemaid in her home district before marrying her husband in 2011 and moved to his home district in Sumbawa Besar where they raised a family with 2 children. In 2014 to help out with her family’s finance, the Applicant came to Hong Kong to work as a foreign domestic helper, returning home only for holidays, but upon completing her last employment contract on 25 June 2021 and while looking for new employment, she was informed by her mother in Indonesia that a man claiming to be her husband’s creditor had come looking for her over her husband’s debts. As a result the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent surrender to the Immigration Department almost one year later on 9 June 2022, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 30 September 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”). 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 husband’s creditor upon her return to Indonesia as low due to the absence of any past ill-treatment from the creditor to her, that there is no evidence of any intention of the creditor to harm her let alone to kill her, that in any event it was a private monetary dispute between her husband 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 277 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 husband’s creditor to locate her. On 10 October 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 31 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision the Board accepted the Applicant’s claim of being told by her mother in Indonesia of her husband’s creditor looking for her over her husband’s debts, but on the basis of even her own case that there was no evidence of any real threats from the creditor against her that it doubted the credibility of her claim of fear of harm from her husband’s creditor that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until almost 12 months after her overstay in Hong Kong, and concluded that there are no substantial grounds for finding that she will face any real risk of harm from anyone upon her return to Indonesia that the Applicant’s claim for non-refoulement protection failed on all applicable grounds. On 20 June 2023 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 her supporting affirmation of the same date to which she just attached a copy of the Board’s decision but without putting forth any proper ground for her intended challenge. 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 also been correctly established by the Director in his decision 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, 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. 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. Moreover, the Applicant recently on 5 March 2024 filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved and that she wants to go home in Indonesia. 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. Dated the 28th day of May 2024 (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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s 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 28 May 2024 Sarinah 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 28 May 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21041 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 835/22 (Formerly RBCZ 5000712/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1