CUCU-JUWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 335/2022

[2022] HKCFI 2139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 335 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 22 August 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 24 August 2012 with permission to work as a foreign domestic helper until the expiration of her last employment contract 1 December 2014 but was arrested by police on 17 November 2014 for theft for which she was subsequently convicted and sentenced to prison for 6 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her two siblings over their inheritance disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Desa Bango II, Kecamatan Bango II, Kabupaten Indramayu, Provinci Jawa Barat, Indonesia where she inherited her parents’ house and the surrounding farm land in 1999 after both of her siblings had moved out upon their marriage, but of which they both bore grudges for not receiving any share thereof.

3.  However, the Applicant soon started to indulge in gambling and as a result incurred many gambling debts that she eventually had to sell her inherited properties to pay off her debts, of which her siblings became even more enraged, accusing her of losing the family’s ancestral properties, and started to make serious threats against her.

4.  To avoid such threats and harassments, the Applicant departed Indonesia in 2002 to first work in Taiwan, and then later in May 2005 she came to Hong Kong to start her employment as a foreign domestic helper, but after her last employment contract was terminated on 17 November 2014 and she was subsequently arrested for theft for which she subsequently imprisoned for 6 months when she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 18 December 2017 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed by her siblings upon her return to Indonesia due to the absence of or 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 the Applicant over the loss of properties which were not theirs in the first place, that in any event it was a private family dispute between the three of 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 260 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 siblings to locate her.

7.  On 28 December 2017 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 20 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 August 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found such serious inconsistencies discrepancies and conflicts in the Applicant’s evidence as to her claim of fear of harm from her siblings over some inheritance disputes years ago that it did not find her to be a credible witness and doubted the credibility of her non-refoulement claim, and that whatever resentment that her siblings might have against her over their inheritance disputes back in 1999 that it is not accepted that after all these years that they would still have any adverse interest in her or any real intention to harm her upon her return to Indonesia that it concluded that the Applicant’s claim for non-refoulement protection failed on all applicable grounds.

9.  On 13 May 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 because “it is away from facts and reality” 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.

10.  By then the Applicant however 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.

11.  As the last day of the three-month period for her to file her Form 86 fell on 22 November 2018, the Applicant was therefore almost 3 ½ years late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of eth 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, a delay of almost 3 ½ years must be considered as extremely substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, and as the record shows that eth decision was sent on the same day to her last reported address without being returned through undelivered post, I fail to see any good reason for her such serious delay.

13.  As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge other than some bare and vague assertions without any details or particulars or elaboration as to how they would apply to her case. As such 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, nor do I find any merits in her intended application either.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 31 – 40 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, 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