PIPIN RIYANTI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2189/2018

[2020] HKCFI 2461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2189 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 Applicant 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 19 April 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 34-year-old national of Indonesia who last arrived in Hong Kong on 6 March 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 6 March 2016 or within 14 days of its early termination, but when her contract was prematurely terminated on 4 November 2015, she did not depart and instead overstayed in Hong Kong, and on 24 November 2015 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 husband’s creditor for failing to repay his loan and/or by the followers of the Sunni Islamic movement Nahdlatul Ulama (“NU”) over their dispute with her father in her home district. She was subsequently being released on recognizance pending the determination of her claim. 

2.  The Applicant was born and raised in DS Kedungringin, Muncar Banyuwangi, Indonesia where her father had some serious disputes with the local NU followers dating back years ago when she was only a small child, when there were occasions that her father had been assaulted by them who had also come to vandalize her home and made threats against her family.

3.  In 2006 the Applicant married her husband and moved to live in a rented place. In 2009 her husband borrowed a loan from the local loan shark for his fruit business, but after he was sued by the family of a victim who died in a traffic accident caused by him, her husband had to close down his business to make compensation for damages, and as a result their relationship deteriorated which led to their separation with the Applicant moving back to her parents’ home, but to avoid the threats and harassments from those NU followers, she therefore came to work in Hong Kong as a foreign domestic helper since 2010.

4.  In 2011 the Applicant started to receive threatening calls from her husband’s creditor that she should repay his loan as he had defaulted with his repayments and disappeared, and in 2012 when she returned to Indonesia during her vacation to visit her parents after they had moved to another village to avoid the NU followers, she was told that her husband’s creditor had come looking for her and made threats against her family.

5.  Upon returning to Hong Kong to continue with her employment, and after her last employment contract was terminated in November 2015, she did not depart for Indonesia and overstayed in Hong Kong due to fear of harm from those NU followers and her husband’s creditor, she therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 9 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 12 December 2016 the Director of Immigration (“the 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) 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”).

7.  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 or the local NU people upon her return to Indonesia as low due to the absence of any past ill-treatment from them, that it is doubtful that they would still have any adverse interest in her after all these years, that her problems with them were private personal disputes without any official involvement that state/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 258 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 area of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband’s creditor or the local NU people to locate her.   

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, but for which she failed to attend an oral hearing scheduled on 26 February 2018 before the Board, and when she also failed to respond to the Board’s subsequent request for an explanation for her failure to attend her appeal hearing, the Board proceeded to deal with her appeal in her absence and on paper. On 19 April 2018 her appeal was refused by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found no evidence of any direct threats or ill-treatments from those NU followers or her husband’s creditor against the Applicant other than her own speculations, that since her family had moved to another village that there had been no further threats from those NU followers or any further harassments from her husband’s creditor for more than 8 years that it is doubtful that they would still have any adverse interest in her, and that with state/police protection as well as reasonable internal relocation available for her to move safely to other area of Indonesia such as the village where her parents now live without any risk of being located by those NU followers or her husband’s creditor that her claim for non-refoulement protection failed on all applicable grounds.     

10.  On 10 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Lack of legal representation in her appeal before the Board;

(2)  Lack of language assistance in her preparation for her appeal to the Board or for translating the Board’s decision to her so that she could properly understand the reasons for rejecting her claim;

(3)  Error in the Board’s decision in finding that it would be reasonable for her to relocate elsewhere in Indonesia without indicating the level of safety in such a geographically large area and a huge population in Indonesia;

(4)  That the Director had cherry-picked the COI in order to rebut her claim when the same COI was used to reject her case but at the same time they show how the Indonesian authorities are corrupt and malpractice; and

(5)  Procedural unfairness in finding that state protection would be available to the Applicant when her personal experience showed that it is not the case.   

11.  By then the Applicant was however out of time with her 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.

12.  As the last day for the Applicant to file her Form 86 fell on 19 July 2018, she was therefore late by 11 weeks with her 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: see AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of 11 weeks must be considered as substantial, for which she explained at the hearing that she did not receive the decision as she had changed her address at that time in early 2018, and hence she was not aware of the decision until later when she was informed by an immigration officer when by then she was already out of time with her intended application.

14.  The record however shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, and in the absence of any further details or documentary evidence in support of her claim, and it was her duty to always inform the authorities of any change to her address, I am not satisfied with her explanation that she did not receive the Board’s decision.        

15.  As to the merits, if any, of her intended application regarding the complaints in her proposed grounds, starting with Ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

16.  The Applicant already had the benefit of legal representation in presenting her case to the Director, but when it came to her appeal hearing before the Board, she chose not to attend the scheduled oral hearing when she could have been able to make further representation regarding her claim, nor did she provide any explanation for her absence. In the circumstances I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

17.  As for her complaint under Ground (2) of not being provided with language assistance in her appeal to the Board including translating the Board’s decision for her which cannot per se be accepted as a proper ground for challenging the decision, it is clear that the Applicant did have assistance in the preparation of her present application which are all written in English. As such and in the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

18.  Regarding her complaint in Ground (3) that there is no basis for the Board to find that it would be safe for the Applicant to relocate to other part of Indonesia in view of its geographically large area and huge population, given the nature of the localized threats based on her own case and in the absence of any state or official involvement in those threats, these are clearly relevant factors which the Board was entitled to take into account in assessing her claim, and I do not find any reasonably arguable basis for this complaint of the Applicant.

19.  As for her complaint in Ground (4) over the Board’s reliance of COI in its assessment of her claim, the Applicant has failed to provide any particulars or specifics in support of her complaint, and upon examination of those COI referred in the Director’s decision and before the Board, I do not find any merit or basis in this complaint of the Applicant either.

20.  Similarly, regarding her complaint under Ground (5) of the finding that state/police protection would be available to her upon her return to Indonesia, the Applicant again failed to provide any particulars or elaboration as to what procedural unfairness was there in such finding or assessment in particularly when she chose not to appear at her oral hearing before the Board to make her representation, nor did she do so even in her application now before me. As such and having examined the COI relied on by both the Director and the Board in their decisions, again I do not find any reasonably arguable basis in this complaint of the Applicant for her intended challenge either. 

21.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

22.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their 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.               

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 Applicant’s claim.

24.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her significant delay, I refuse to extend time and accordingly dismiss her 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