TASINIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 430/2022

[2022] HKCFI 2159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 430 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 (counsel for) 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 8 October 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 20 July 2015 with permission to work as a foreign domestic helper until expiration of her employment contract on 2 November 2017 or within 2 weeks of its early termination, but when her employment was prematurely terminated on 25 January 2017, she did not depart and instead overstayed since 9 February 2017, and was arrested by police on 27 February 2017. 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 abusive husband for refusing to reconcile with him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Desa Cemara, Losarang Sub-district, Indramayu Regency, West Java Province, Indonesia. After leaving school she came to Hong Kong in 2005 to work as a foreign domestic helper.

3.  In 2007 she returned to Indonesia to marry her husband and moved with him to live in Jakarta, but soon she found him to be bad temper and abusive towards her and was frequently out of work, and so to help out with her family’s income, she in 2008 returned to work as a foreign domestic helper in Hong Kong.

4.  In about 2010 she started to suspect that her husband was having an affair with another woman in Indonesia, of which her husband later admitted but which she found intolerable, and so in 2012 she returned to Indonesia to demand to divorce him but which he refused and threatened to kill her if she dared to leave him.

5.  Fearful for her life, the Applicant therefore returned to Hong Kong to continue with her employment as a foreign domestic helper and cut off all her contact with her husband, but when her last employment was terminated in January 2017, she was afraid to return to Indonesia and overstayed in Hong Kong, and after she was arrested by police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 27 March 2018 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 husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to harm or kill her, that in any event it was a private domestic dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Indonesia, 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 that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Bali where it would be difficult if not impossible for her husband to locate her.

8.  On 9 April 2018 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 7 September 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 October 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of marital disputes with her husband and possibly threats from him over his demand for reconciliation with her, but found no evidence of any real intention of him to seriously harm or kill her as she has cut off all contact with him since 2012, and that in any event it was a private domestic dispute between the two of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 6 June 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just stated that she is not satisfied with the decision as it was way from facts and reality of her case and that there is no transparency in the decision but without providing any details or particulars or elaboration as to how it was so, nor did she request any oral hearing for her application.

11.  By then the Applicant was also seriously 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 day 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 of the three-month period for her to file her Form 86 fell on 8 January 2019, the Applicant was therefore more than 3 years late 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: AW v Director of Immigration [2016] 2 HKC 393.

13.  In the Applicant’s case, a delay of more than 3 years must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or supporting affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good or valid reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above those bare assertions of the Applicant are without supporting details or particulars that I do not find any of them reasonably arguable for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

15.  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.

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

17.  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.

18.  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 extremely serious 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