YUSNA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1444/2018

[2021] HKCFI 1642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1444 of 2018

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 Applicants in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 31 March 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 50-year-old national of Indonesia who last arrived in Hong Kong on 30 December 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 30 December 2012 or within 2 weeks of its early termination, but when her contract was prematurely terminated on 23 August 2011, she did not depart and instead overstayed in Hong Kong, and on 8 December 2011 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her loan, and after she was released on recognizance pending the determination of her claim, she on 12 February 2012 gave birth to a daughter, the 2^nd Applicant (“A2”) for whom she also raised a non-refoulement claim on the same basis as hers plus fear of risk of discrimination and persecution against A2 for being a mixed African and Indonesian illegitimate child.  

2.  A1 was born and raised in Palembana, South Sumatra, Indonesia as an ethnic Chinese and a Christian. After leaving school she worked in a textile factory, married her husband and raised a family with 2 children.

3.  In 2003 she started to come to work in Hong Kong as a foreign domestic helper, during which her husband passed away in 2007, and she became the sole bread winner of her family to support her children.

4.  In 2011 she borrowed a loan of between HK$5,000 and HKS10,000 from a finance company in Hong Kong for the support of her children in Indonesia, repayable by monthly instalments from her salaries.

5.  At around the same time she formed a relationship with an African man and soon became pregnant with A2, and as a result her last employment contract was prematurely terminated on 23 August 2011, but as she was no longer able to make any further loan repayments, and when her creditor started sending debts-collectors to her home in Indonesia looking for her and making threats against her family members, she was therefore afraid to return to Indonesia and instead overstayed in Hong Kong.

6.  On 8 December 2011 she surrendered to the Immigration Department and raised her non-refoulement claim for protection, and after giving birth to A2 on 12 February 2012 when by then she had lost contact with her African boyfriend, she also raised a similar claim for A2 on the same basis as hers as well as fear of discrimination or persecution by the Indonesian community for being a mixed African/Chinese illegitimate child, and subsequently completed a Non-refoulement Claim Form (“NCF”) on 2 November 2015 jointly for both of them and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 4 March 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from A1’s creditor and debt collectors upon their return to Indonesian as low due to the absence of any past ill-treatment from them, that in the absence of any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that there are laws to protect freedom of religion in Indonesia, that it is a multi-racial and cultural country, that there are both government and non-government organizations to protect and assist single-mothers and illegitimate children in the society as well as reasonable internal relocation alternatives within Indonesia with a large population of 253 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to safely move with A2 to other parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate them.

9.  By a Notice of Further Decision dated 13 January 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

10.  By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 15 March 2016, and for which they attended an oral hearing on 8 February 2017 before the Board during which A1 gave evidence and answered questions put to her by the Adjudicator for the Board. On 31 March 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found no evidence of the Applicants ever been subjected to harm or ill-treatments by A1’s creditor or debts-collectors over her alleged debt, and that according to relevant COI that Indonesia is a society that embraces diversity with no massive violation of human rights on Chinese-Indonesian for years or any evidence of discrimination or persecution against Chinese-Indonesian or Christians to make a normal living in any part of Indonesia due to race reasons, and while there may be some form of discriminations which A2 as a mixed African and Chinese illegitimate child in certain parts of Indonesia, there would be support and assistance from both government and non-government organizations available for A1 to move safely with A2 to other areas of Indonesia away from her home district without any risk of being located that their claim for non-refoulement protection failed on all applicable grounds.      

12.  On 23 July 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she merely stated that the decision disregarded their “dangerous situation” without providing any further details or particulars or elaboration how it did so, nor did she put forward any other proper ground for their intended challenge at the hearing of their application despite being invited by the court to do so.  

13.  By then the Applicants were also seriously out of time with their application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.  As the last day of the three-month period for them to file their Form 86 fell on 30 June 2017, the Applicants were therefore more than 1 year late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

15.  In the Applicants’ case, a delay of more than 1 year must be considered as very substantial and excessive, for which A1 explained at the hearing of her application that as she was without legal representation and was not aware of the rules for making application for judicial review until much later when she got help from her friends but by then she was already out of time.

16.  The record shows that the decision was sent on the same day to their last reported address without being returned through undelivered post, while ignorance of the rules cannot of course be accepted as any reason for their non-compliances, let alone such a serious delay. As such I am not satisfied that the Applicants have provided any good reason for their serious delay.

17.  As for the merits, if any, of the intended application, as noted above, the Applicants have not put forward any proper ground for their intended challenge, nor have they provided any details or particulars or elaborations as to how the decision had disregarded their situation in Indonesia. In fact, quite to the contrary, the Board did in the decision correctly find no evidence even on the facts of their own case that the Applicants have ever been subjected to any threats or ill-treatments in Indonesia, and that it had also taken proper consideration of the relevant COI in its assessment and determination of all the possible risks which they claimed to fear under all the applicable grounds.

18.  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.

19.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other parts of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKCA 526.

20.  I am of course mindful of the fact that A2, being a minor now at the age of 9 was not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, and hence it would be necessary to separately consider and examine whether her claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board, as was held to be the proper approach by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 07, and in Re Jasvir Singh & Others [2021] HKCA 53, in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.  

21.  In the present case, as found by the Board even on the facts of her own case as put by her mother, A2 having been born in Hong Kong has never been subjected to any threats or ill-treatment either in the form of risks of torture, BOR 3 or persecution in Indonesia, and as she was only five years old when the Board heard her appeal, she could not have given any evidence of any such fear either.

22.  Furthermore, it is clear from the Board’s decision that the Adjudicator did take into proper consideration those matters specific to A2 as a mixed African and Chinese illegitimate child born outside of Indonesia as raised by her mother (see [94] – [102] of the decision) in its determination of A2’s claim, and upon careful examination of the evidence filed in this case both before the Director and the Board, I do not see any other material which may give rise to any concern that there may be any non-refoulement grounds which are specific to A2 but had not been advanced to the Board or considered by it due to lack of legal representation before the Board.

23.  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 Applicants’ claim.

24.  As such and as there is no reasonably arguable merit in the Applicants’ intended challenge, I shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merit in her intended judicial review.

25.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

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