SRI SETIYANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2210/2019

[2024] HKCFI 3340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2210 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Notice of Decision of the Director of Immigration Department (“the Director”) dated 2 September 2016, which has been superseded by the Decision dated 13 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  Time for the applicant to file Form 86 expired on 13 March 2019. The applicant filed her Form 86 on 1 August 2019. Her application is late for more than four and a half months. I shall deal with this issue below.

3.  The applicant had a daughter and a son, respectively aged 15 and 14 and they lodged their non-refoulement claims together with their mother. However, in Form 86, only the mother is the only applicant, without the children. The Court intended to clarify with the mother as to why her children were not named in Form 86. The Court therefore fixed a date for the applicant to appear before it. However, the applicant was absent at the hearing on 4 November 2024. The Court therefore proceeded to deal with the applicant’s application on the papers without further enquiry. If the children make their applications later, their applications will be considered accordingly.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board, the Director of Immigration is the interested party.

The applicant

5.  The applicant, aged 44, worked as a domestic helper in Hong Kong since 27 December 2005 until 25 March 2008 where her employment contracted was terminated. Her application for staying in Hong Kong was refused. She did not depart and overstayed in Hong Kong since 11 April 2008. She gave birth to a daughter and a son in Hong Kong. Together with her children, she lodged a non-refoulement claim with the Director on 19 March 2013.

6.  The applicant claims that if she returns to Indonesia, she and her family will be harmed or killed by her paternal family and Rehman Wijaya (“RW”) because (i) she broke her promise to marry RW as arranged by her paternal family and she had relationship and married a man in Hong Kong without her parents’ approval; (ii) her failure to marry RW had hurt his heart and feeling and made him lose face in her home village; and (iv) her membership in a particular social group.

7.  According to the applicant, she was forced to agree to marry RW when she was 18 years old. RW was a rich and influential government official in the area where she lived. Her two brothers were offered jobs in RW’s chicken farms. Her family and RW agreed to allow her to work overseas before the marriage. She came to Hong Kong to work as a domestic helper in 2005. She met a Sri Lankan and they got married in May 2011. She gave birth to her daughter. She told her father about it. Her father was very angry and he disapproved the marriage. RW had knowledge about it. He was angry too. Her 2 brothers were assaulted by RW. They reported to police, which did not take any action. RW has threatened that if she returns to Indonesia, he will kill her. She considers that state protection will not available and internal relocation not viable because she does not have any support from her family or friends.

8.  Details of the story of the applicant can be found in paragraph 10 of the Director’s Decision dated 2 September 2016 (“the Director’s Decision”).

The Director’s Decision

9.  As the applicant had lodged torture claim and was rejected, the Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claims on Persecution risk, BOR 2 and BOR 3 risk. The Director found that: (i) there is no evidence to support her claim that her paternal family will harm or kill her if she returns to Indonesia; (ii) there is no risk that she will suffer torture up to the level of severity to meet the minimum level of severity under BOR 3 risk; (iii) state protection will be available; and (iv) internal relocation is a viable option for her.

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 19 December 2018, the Board conducted an oral hearing where the applicant and her children were present. They were legally represented under the Duty Lawyer Service.

12.  Having considered the evidence, the Board dismiss their appeal upon the findings below:

“45. I am sorry to have to say that the appellant completely failed to provide what might be regarded as even minimally detailed, coherent or cogent evidence about the central elements of her claim. She also failed to demonstrate even the most basic or superficial of her claim to support her vague assertions with information reasonably at her disposal. For the reasons I set out in more detail below, therefore, I find her account as to the circumstances in Indonesia is entirely unreliable.

64. … in my judgment, that this appellant is not a witness of truth and that she has failed to establish even a reasonable likelihood that her claims are true. I find no credence whatever can be given to any of her assertions as to the circumstances in Indonesia and I reject those claims.

71. … the first appellant is not facing the prospect of return to Indonesia as a single mother, her children will not be treated as illegitimate as deprived of Indonesian nationality and her husband is likely to benefit from legal status as a spouse.

75. On that basis, on the evidence before me, I conclude the three appellants face no real risk of forms of discrimination as a result of their mixed ethnicity of nationality upon travel to Indonesia.”

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decisions.

14.  In her affirmation in support of her application, the applicant has raised the grounds below to challenge the Board’s Decision.

(1)  The Board was wrong not to accept her evidence that it would be dangerous for them to return to Indonesia.

(2)  The Board had not heeded the international obligation of taking care of the children’s interest.

(3)  On those bases, the Board’s Decision is Wednesbury unreasonable.

DISCUSSION

15.  As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  For the reasons given, the Board rejected her evidence in support of her claim. This is a matter of the credibility of her evidence, which is squarely within the province of the Board. Those grounds under paragraph 6 are her bare assertions without any evidence in support. All of the grounds are not valid to challenge the Board’s Decision.

20.  I find that the applicant has failed to show that there is realistic prospect in her intended application.

DISPOSITION

21.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.