SUGIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1124/2022

[2023] HKCFI 1703

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1124 OF 2022

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;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 4 February 2022 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 17 February 2016 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 17 February 2018 or within 14 days of its early termination, but upon the expiration of her employment contract on 17 February 2018, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 25 July 2020. 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 parents’ creditor over their unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Gayabaru, Lampung, Indonesia. After leaving school she remained living with her parents in her home village, and in 2008 went to Singapore to work as a domestic helper until 2012 when she then came to Hong Kong to work as a foreign domestic helper, returning to her parents’ home in Indonesia only during holidays.

3.  In 2011 her parents borrowed a loan from a local money-lender, but later when they were unable to repay their loan, the money-lender demanded that they should marry their daughter, i.e. the Applicant to him in settlement of their debts.

4.  In June 2015 the Applicant returned to her parents’ home for holiday, and one night the money-lender came with his men to demand her to marry him, and when she refused, they threatened her and then molested her until her neighbours heard her screams and came to her help that the money-lender and his men then left.

5.  After the incident the Applicant fled to hide in her uncle’s place, and later returned to Hong Kong to continue with her employment, but the threats from the money-lender persisted, and upon completing her last employment in February 2018, the Applicant was afraid to return to Indonesia, and so she overstayed in Hong Kong, and after her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 April 2021 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 14 May 2021 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”).

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 parents’ creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her parents to repay their debts, that in any event it was a private monetary dispute between her parents and their creditor 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 275 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 parents’ creditor to locate her.

8.  On 1 June 2021 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 4 February 2022 before the Board when she then applied to withdraw her appeal as she claimed that it was safe for her to return to her home country, and upon her confirmation that she was fully aware of the consequences of the withdrawal, and upon being satisfied that her decision was freely sought and that she had a good reason for her proposed withdrawal, the Board in writing on the same day directed that her appeal/petition be withdrawn with no further action to be taken in respect of her non-refoulement claim, and that the Director’s decision regarding her claim shall stand.

9.  However, some 8 months later on 21 October 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Director’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date to which she just attached a copy of the decision without any explanation why having withdrawn her appeal against that decision from the Board some 10 months ago that she has now changed her mind and wants to challenge that decision again, nor did she request any oral hearing for her application.

10.  Given the fact that having earlier already withdrawn her appeal to the Board on the basis as recorded and stated in its decision dated 4 February 2022, and in the absence of any evidence to the contrary from the Applicant in her present application, it seems to me that it was a valid withdrawal or abandonment of the appeal by the Applicant in the sense of being the result of a deliberate and informed decision on her part, and hence the appeal is no longer extant and the Board has become functus officio with no further jurisdiction to take any step regarding the appeal: see Re Das Purnima Rani [2019] HKCA 669, and therefore the only viable option for the Applicant, for whatever reason, to now challenge the Director’s decision is by way of her present application for leave to judicially review that decision rather than the Board’s decision.

11.  However, regardless as against either decision, the Applicant was by now clearly 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, 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 HKC 393.

12.  In the Applicant’s case, given that she has never provided any explanation as to why she has now changed her mind after having validly withdrawn her appeal against the Director’s decision some 10 months ago, but even if I were to assume, on the factual basis of her claim, that something has since occurred that it is no longer safe for her to return to her home country, I am still unable to see any reasonably arguable basis for her to challenge either decisions.

13.  As noted above, the Director was clearly correct to find even on the factual basis of the Applicant’s own case that any risk arising from what was clearly a private monetary dispute between her parents and their creditor and without any official involvement that it would be negated by both state/police protection and internal relocation available being available to the Applicant upon her return to Indonesia, and as such, in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in his decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge or any merits in her intended application.

14.  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.

15.  In the Applicant’s case, the fact is that it has been established by the Director in his decision 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.

16.  Having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in it, nor any failure on his part to apply high standards of fairness in his consideration and assessment of the Applicant’s claim.

17.  Furthermore, the Applicant has recently filed an affirmation requesting to withdraw her application as her problem has been solved and that she now wants to return to her home country.

18.  In the premises, as I am 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 that there is now no problem for her to return to Indonesia, I 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