SULIYATI-JEMINGAN v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 813/2018

[2020] HKCFI 1127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 813 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 July 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the Applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the Applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1.     The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 4 June 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 December 2015 or within 14 days of its early termination. However, when her contract was prematurely terminated on 15 September 2015, she did not depart and instead overstayed and was arrested by police on 19 October 2015.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for refusing to pay him money for his use.  She has since been released on recognizance pending the determination of her claim.

2.     The Applicant was born and raised in Desa Ringinsari, Kecamatan Pesanggaran,Kabupaten Banyuwangi, Indonesia.  After leaving school she worked as a sales assistance and in 2000 she married her former husband who was a farmer, and later gave birth toa son.

3.     In 2009 the Applicant started to work as a foreign domestic helper in Hong Kong and remitted her monthly salary to her husband for the support of their family.  In 2012 she and her husband purchased a piece of land in their home village for the purpose of building a house for their family.

4.     However, in 2013 the Applicant heard that her husband had been indulging in gambling whilst she was away working in Hong Kong, and had as a result got into serious gambling debts which he would try to repay with the monthly remittances from the Applicant and by borrowing from other people in the village, and when that was not enough,his creditors then confiscated their land and sold it off which upset the Applicant.

5.     In early 2014 the Applicant was told by her family that her husband was having an affair with another woman in Indonesia, and when she confronted him on the phone,he admitted the same and claimed to have already divorced the Applicant in Indonesia.

6.     In May 2014 the Applicant returned to Indonesia to visit her family and stayed at her mother’s place in Kecamatan Pesanggaran, during which her former husband approached her on several occasions to demand money from her to pay off his debts, and when she refused, he threatened that he would kill her, but as her family members were present in the house, he did not do anything to the Applicant other than banging on the table before leaving angrily.

7.     On 4 June 2014 the Applicant returned to Hong Kong to resume her employment,but her former husband would continue to call her on the phone to demand money from her with death threats if she failed to meet his demand, and so when her employment contract was prematurely terminated in September 2015, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 23 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 15 July 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“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”).

9.  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 her former husband to the Applicant upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence that her former husband had any serious intention to harm or kill her, that it was a domestic monetary dispute 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 256 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicantas an able-bodied adult with work 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 former husband to locate her.

10.  By a Notice of Further Decision dated 2 June 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her 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”).

11.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 26 July 2016, and for which she attended an oral hearing on 28 June 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 7 July 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.  In its decision the Board found the Applicant’s evidence given at the hearing vague and inconsistent, but was prepared to give her benefit of the doubt by accepting her claim of threats from her former husband and her fear of harm from him for failing to give him money, but apart from verbal threats that she had not suffered any ill-treatments from her former husband that would attained the minimum severity whether physically or mentally under any of the applicable grounds, and that in any event she can relocate to other parts of Indonesia in large cities such as Jakarta, Denpasar or Medan where it would be difficult if not impossible for her former husband to locate her.

13.  On 10 May 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 he put forward the following grounds for her intended challenge:

     (1)     procedural impropriety in their failure to properly assess her fear of risk of harm that she will face from her husband upon her return to Indonesia;

     (2)     procedural impropriety in their failure to properly assess her claim under all the applicable grounds; and

     (3)     error/misdirection in law in their failure to her fear of domestic violence upon being refouled to her home country.  

14.  By then however the Applicant was way out of time with her application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A 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.

15.  In the Applicant’s case, the three-month period within which she was to file her Form 86 expired on 7 October 2017, and hence she was late by more than six months after taking into account the court’s vacation in August 2017; 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 Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

16.  A delay of more than six months must be considered as substantial or excessive, for which the Applicant explained in her supporting affirmation that it was essentially due to the time taken by her application for legal aid and subsequent appeal, and that when that failed and she had to prepare her application with the help of her friend, she was already way out of time.  She did not produce any documentary evidence of her legal aid application or appeal, and the court record does not reveal any such legal aid application, but even accepting that was the main reason for her delay, it would in my view still be unreasonably excessive for her to take more than nine months including the three-month period allowed under the rule to file her Form 86.  In the circumstances I do not accept that she has provided any good reason for her delay.

17.  As for the merits of her intended application, a close examination of her proposed grounds reveals that they are all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decision,or in what way did they fail to properly assess her claim under any of the applicable grounds. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error in law or procedural unfairness in their decisions being clearly and properly identified by the Applicant, I do not find any of these grounds reasonably arguable for her intended challenge.

18.  As has been repeatedly emphasized by the Court of Appeal, 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 being 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 the Director of Immigration [2018] HKCA 524.

19.  Furthermore, 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 Applicant’s 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.

20.  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.

21.  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 substantial delay, I refuse to extend time and accordingly dismiss her 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