EKO WATI SUWARNO v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2020/2018

[2020] HKCFI 1529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2020 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 ofthe decision of Torture Claims Appeal Board dated 11 May 2017 refused; and

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

Observations for the Applicant:

1.     The Applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 26 November 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract on 5 February 2009 when she then submitted a false new employment contract and was granted an extension of stay to work as a domestic helper until 18 February 2011, but on 26 March 2010 she was arrested for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 8 months. When she was serving her sentence in prison, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for divorcing him and/or by her family for having a boyfriend in Hong Kong who was not a Muslim, and when her torture claim was rejected, she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim.

2.     The Applicant was born and raised as a Muslim in Tegal City, Jawa Tengah Province, Indonesia.  After leaving school she worked as a domestic helper, married her husband, and gave birth to a daughter.

3.  However, the Applicant soon found her husband to be lazy and refusing to work, and instead indulged in drinking and gambling, and when he was drunk he would become abusive to her by slapping and punching her at will.

4.  In 2000 as the Applicant found it intolerable to continue living with her husband, she therefore applied to come to Hong Kong to work as a foreign domestic helper, which she did in February 2001 to start her first employment contract, and every month she would remit most of her salary to her husband for the support of their daughter and their family.

5.  In 2005 when she returned to Indonesia for holiday, the Applicant discovered that her husband had spent most of her monthly remittance on his own drinking and gambling instead of on their daughter or the family, and when she confronted him about it, her husband became violent by slapping and punching her.  As a result the Applicant filed for divorce against him and placed their daughter in the care of her mother before returning to Hong Kong to continue with her employment when she subsequently met her boyfriend who happened to be a Christian.

6.  In 2007 the Applicant was informed by her mother that her former husband had demanded for money from the Applicant and threatened to take back their daughter, and when her mother refused, he then threatened that he would kill the Applicant upon her return to Indonesia.  As a result when her last employment was completed in 2009 and when she was unable to find further employment, and as she was afraid to return to Indonesia, the Applicant submitted a fake employment contract to the Immigration Department in her application for extension of her visa in Hong Kong, and was subsequently allowed to remain in Hong Kong up to February 2011.

7.  On 26 March 2010 she was arrested by police for undertaking unauthorized employment, and for which she was convicted and sentenced to prison for 8 months.  When she was serving her sentence in prison, she raised a torture claim on the basis of her fear of being harmed or killed by her former husband upon her return to Indonesia, and was released on recognizance pending determination of her claim.     

8.  On 20 May 2011 her torture claim was rejected by the Immigration Department, but the Applicant failed to report to her recognizance and went into hiding in Hong Kong until 14 September 2014 when she was arrested by police.  After she was referred to the Immigration Department, she then sought non-refoulement protection on the same basis as before and also on her fear that she would be harmed or killed by her family and fellow villagers for her relationship with her Christian boyfriend, for which she completed a Supplementary Claim Form on 29 April 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

9.  By a Notice of Decision dated 26 August 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but including 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”).

10.  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 former husband or her family upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that after all these years that it was doubtful that her husband would still have any adverse interest in her, that there is no reliable evidence that she would be harmed by her family or fellow villagers over her relationship with a non-Muslim man in Hong Kong, that in any event in the absence of 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 255 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 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 or her family to locate her.

11.  By a Notice of Further Decision dated 25 October 2016 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”).

12.  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 4 September 2015, and for which she attended an oral hearing on 10 November 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 11 May 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

13.  In its decision the Board found such serious discrepancies and inconsistencies in the Applicant’s evidence as to her alleged relationship with her Christian boyfriend and her claimed fear of harm from her family and villagers over her such relationship that it rejected her claim of genuine fear for her own safety upon her return to Indonesia, that given a period of twelve years had elapsed since she divorced her husband during which she had no further contact at all with him that it was not persuaded that she would be subjected to any ill-treatment or threats from him were she to be refouled to Indonesia, and that with reasonable internal relocation within Indonesia available to the Applicant to move to a location other than her home district such as Jakarta with a population of more than 10 million people and where she can safely re-establish herself without any fear of being located by her former husband or her family that her claim for non-refoulement protection failed on all applicable grounds.   

14.  On 24 September 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)     procedural impropriety in the failure of the Director and the Board to conduct sufficient inquiry into the relevant country of origin conditions;

(2)     procedural impropriety/irrationality in their failure to provide reasons for assessing that there was no BOR 3 risk and/or no sufficient basis to support their conclusion of lack of BOR 3 risk;

(3)     error/misdirection in law in their failure to take into account the consideration of psychological strain and threats to the Applicant personally or the threats to kill her;

(4)     error/misdirection in law in their failure to apply or properly apply paragraph 2 of the UN Committee General Comment No 2 concerning the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizens which are effective in any event;

(5)     procedural impropriety in their failure to consider the concept of extended state acquiescence as expounded in the case of TK v Jenkins; and

(6)     procedural impropriety in their failure to assess her fear properly of harm from her ex-husband upon her return to her home country despite various threats from him to her and her family.  

15.  The Applicant was however by then more than one year late 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.

16.  As the last day of the three-month period for the Applicant to file her Form 86 fell on 11 August 2017, she was therefore more than 13 months 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of more than 13 months must be considered as very substantial or excessive, for which she explained in both her supporting affirmation and at the hearing that she never received the Board’s decision in the mail and was therefore not aware of it until 24 September 2018 when she reported to the Immigration Department that she was informed of the decision but by then she was way out of time.

18.  The record however shows that the Board’s decision was sent on the same day of 11 May 2017 to the Applicant’s last reported address and had not been returned through undelivered mail, and that apart from her own words the Applicant has not produced any other independent evidence to corroborate her claim.  Furthermore, in her same supporting affirmation she stated in paragraph 13 that “By a letter dated 11 May 2017 the TCAB gave me a Decision that my appeal/petition has been dismissed” which clearly contradicts her claim that she never received the decision from the Board.  As such and in the premises I am not satisfied that the Applicant has provided any good or valid reason for her such serious delay.     

19.  As for the merits of her intended application, her proposed grounds are however all just broad and vague assertions 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 decisions, or in what way did they fail to conduct sufficient inquiry into the relevant COI, or what relevancy is the concept of extended state acquiescence to her claim, and that it is plainly factually incorrect to say that they failed to give their reasons for rejecting her claim for BOR 3 risk when they were clearly set out in paragraphs 31 – 33 and paragraphs 50 – 51 respectively of their decisions.  As such and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

20.  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 or her 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.

21.  In the Applicant’s case, 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 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.     

22.  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.

23.  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 serious 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