SRI MULYANI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2070/2019

[2024] HKCFI 2888

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2070 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Sri Mulyani (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 29 December 2017 (“Board’s Decision”) when the Board affirmed the decisions of the Director of Immigration (“Director”) dated 1 September 2016 (“2016 DOI Decision”) and 1 August 2017 (“2017 DOI Decision”) (together referred to as “DOI Decisions”) in refusing the Applicant’s claim for non-refoulement protection (“NRF Claim”) and for protection against risk under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance Cap. 383 (“BOR”) (“BOR 2 risk”) (together referred to as “Claim”).

Background of the Applicant

2.  As set out in the DOI Decisions and the Board’s Decision, the Applicant is an Indonesian. She was born on 1 October 1983 in Central Java, Indonesia. She completed junior high school education and worked as a hawker in Indonesia and a foreign domestic helper in Singapore and Hong Kong.

The Claim

3.  The Applicant relied on the following facts for her claim. The Applicant married her husband (“Husband”) in 2000. Husband was a casual worker and the breadwinner of the family. About a year after their marriage, Husband became addicted to drinking and gambling. He spent all his income on alcohol, gambling and other women. He also slapped the Applicant when he was drunk.

4.  The Applicant did not suffer serious injuries. She never sought any medical treatment and did not report Husband to the Indonesian authorities.

5.  The Applicant went to Singapore to work as a foreign domestic helper from 2002 to 2005. Husband asked her to remit money to him to build a house which she complied. She later found out that Husband lied about the purpose for getting the money from her.

6.  The Applicant went back to Indonesia in 2005 after her contract in Singapore was terminated. She learnt that Husband owed money to different people (around HK$40,000 equivalent). Different loan sharks called her home about twice a week. Husband managed to pay back the loans with the help of the Applicant’s mother.

7.  The Applicant lived peacefully with Husband for some times. However, Husband became violent again after she gave birth to their son in May 2008. Husband slapped and kicked her and even kicked her on the abdomen whilst she was pregnant with their second child. The Applicant asked for a divorce but Husband strangled her and threatened to kill her. He pulled her on her hair and she kept crying.

8.  The Applicant told Husband that she wanted to come to Hong Kong to work and promised to buy him things. He agreed to support her application to work in Hong Kong. The Applicant came to work in Hong Kong in 2011.

9.  The Applicant avoided any contact with Husband after she came to Hong Kong. She changed her phone number whenever Husband learnt of her number. Nothing eventful happened while she was in Hong Kong. The Applicant learnt from her mother that Husband was mad at her.

10.  The Applicant claimed that her life would be endangered by Husband if she returned to Indonesia.

Procedural history

11.  The Applicant arrived in Hong Kong on 25 October 2011 to work as a foreign domestic helper. Her contract was terminated pre-maturely on 18 February 2013 and she was allowed to stay in Hong Kong until 4 March 2013. She overstayed in Hong Kong and was arrested by the police on 9 March 2013.

12.  In April 2013, the Applicant lodged a refugee application with the United Nations High Commissioner for Refugees.

13.  By a written representation of 3 March 2014, the Applicant lodged the NRF Claim.

14.  The Director had considered the NRF Claim on the following grounds under the United Screening Mechanism (“USM”), namely:

(a).  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b).  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(c).  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

15.  By a decision dated 1 September 2016 (i.e. the 2016 DOI Decision), the Director refused the NRF Claim.

16.  By a letter dated 7 July 2017, the Director invited the Applicant to submit additional facts, if any, which the Applicant considered relevant to the NRF Claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the BOR, including BOR 2 risk.

17.  The Applicant did not submit any additional materials or facts to the Director. By the decision dated 1 August 2017 (i.e. the 2017 DOI Decision), the Director refused the Applicant’s protection claim on BOR 2 risk as well.

18.  The Applicant had previously filed an appeal/petition to the Board (“Appeal”) against the 2016 DOI Decision. As the Appeal had not been determined when the 2017 DOI Decision was issued, the Board treated the Appeal as an appeal against both the 2016 DOI Decision and the 2017 DOI Decision. By the Board’s Decision, the Board affirmed the DOI Decisions. The Board rejected and dismissed the Appeal.

19.  On 19 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affidavit on the same day (“Supporting Affidavit”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents and the Hong Kong High Court as the proposed interested party.

20.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall 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.

21.  The Board’s Decision was issued on 29 December 2017. As such, the Applicant had to file the Form 86 latest on 29 March 2018. The Form 86 was filed on 19 July 2019 and it was late.

22.  No application for extension of time to file the Form 86 was made by the Applicant and the Applicant did not attend the court hearing scheduled for 3 October 2024 (“Court Hearing”). As such, no explanation had been given by the Applicant for the delay in her filing of the Form 86.

23.  The Applicant was late for more than 15 months in filing the Form 86. This is a serious and substantial delay.

24.  The Applicant had not provided any explanation for the delay. There is no basis for the court to extend the time for the Applicant to file the Form 86 in this case. Solely on this ground, this application of the Applicant for leave to apply for judicial review is liable to be dismissed.

25.  For the sake of completeness, I also deal with the merits of the Applicant’s application below.

The DOI Decisions

26.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that Husband intended to seriously harm the Applicant. This was because Husband had never inflicted serious injury on the Applicant and the Applicant apparently felt safe enough around Husband to live with him after her return from Singapore. The low intensity of past ill-treatment from Husband was indicative of a small future risk of harm upon the Applicant’s return to Indonesia.

27.  The Applicant suffered soreness at most as a result of Husband’s recurrent assault and she never sought medical consultation but simply massaged and let the pain dissipate after several days. The Director did not accept that the past threat from Husband attained the requisite minimum level of severity for protection for the BOR 3 risk. The Director also found that the Applicant had failed to establish a personal and real risk in respect of the BOR 2 risk upon her return to Indonesia.

28.  The feared ill-treatment did not fall within the ambit of persecution risk. It was purely a private and domestic dispute which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion.

29.  The Indonesian government was not involved in, indifferent to or provided any form of encouragement to Husband in threatening, harming or attacking the Applicant. The Applicant was not a target of the Indonesian government nor did the Indonesian government had any adverse interest on her. As such, she was not facing any torture risk and state protection was available. After considering the relevant country of origin information (“COI”), the Director found that the Indonesian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant if necessary.

30.  The Director further found that the Applicant could seek assistance from other non-government organizations, such as Rifka Anissa, SIKAP, Legal Aid Institute for the Indonesian Women’s Association for Justice or PEKKA.

31.  The Director found that internal relocation would be viable. If the Applicant moved to Jakarta or Medan, Husband would have great difficulty in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

32.  For the reasons set out in the DOI Decisions, the Director rejected the Claim.

The Board’s Decision

33.  At the hearing, the Board asked the Applicant to clarify certain aspects of her case. The Board proceeded on the basis that the events she relied on were true but did not accept that she faced any of the proscribed risks of harm upon her return.

34.  The Board found that the past ill-treatment by Husband was not serious and the risk of harm she faced upon her return to Indonesia did not meet the requisite minimum threshold of severity for claiming protection under any of the risks being considered.

35.  The Board carefully considered the COI and found that state protection would be available to her. It found that the Indonesian government had made efforts to combat violence against women and there were nation-wide strategies to help women suffering from domestic violence.

36.  The Board further found that internal relocation would be viable. With 9 years education and 10.5 years of working experience, it would not be unduly harsh to expect her to relocate to other part of Indonesia, such as Jakarta or Bali Island, to avoid Husband.

37.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decisions and dismissed the Appeal.

Legal principles applicable to judicial review

38.  In a judicial review, the court does not step into the shoes of the decision makers.

39.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

40.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

41.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

42.  In the Supporting Affidavit, the Applicant only stated that; “The reason of application is because my life is in danger to be back to my country.” The Applicant produced no supporting documents.

43.  The Applicant failed to attend the Court Hearing despite notice of hearing having been sent to her on 17 September 2024. I proceeded with this application according to the papers already placed before the court.

44.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affidavit. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decisions, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

45.  Having rigorously examined the Board’s Decision and the DOI Decisions with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

46.  The Board found that the Applicant had not been severely injured by Husband. The assault from Husband did not attain a minimum level of severity. The Applicant failed to establish a personal risk of her right to life being violated. Her fear of ill-treatment was purely domestic and private and no government officials had been involved. It was also not on account of race, religion, nationality, membership of a particular social group or political opinion. Both state protection and internal relocation were available to the Applicant.

47.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

Conclusion

48.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decisions with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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