IKAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 388/2023

[2024] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 388 OF 2023

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 25 November 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 36-year-old national of Indonesia who last arrived in Hong Kong on 17 September 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 17 September 2019 as extended or within 14 days of its early termination, but when her employment was prematurely terminated on 30 March 2018, she did not depart and instead overstayed, and almost 3 years later on 28 January 2021 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her former husband for divorcing him against his wish. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dusun Nyangget, Desa Sepakek, Kecamatan Pringgarata, Lombok Tengah, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.  However, she soon found her husband’s violent tempers intolerable as he would be abusive towards her by slapping and punching her at will, and to avoid such violent abuses from him, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she did in 2013, returning to Indonesia only for holidays by staying at her parents’ home to avoid seeing her husband.

4.  In November 2017 she applied to divorce her husband through her lawyer in Indonesia, for which her husband was furious and threatened to kill her when she returned to Indonesia.    

5.  Henceforth when her last employment in Hong Kong was prematurely terminated on 30 March 2018, the Applicant was afraid to return to Indonesia, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 October 2021 and attended screening interview before the Immigration Department with legal representation.             

6.  By a Notice of Decision dated 8 December 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 her being harmed or killed by her former 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 seriously harm or kill her or to still have any adverse interest in her all these years after she left the country and their divorce in 2017, that in any event it was a private matrimonial dispute between the 2 of them 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 former husband to locate her.

8.  On 13 December 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 29 September 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim and that in the absence of any documentary evidence such as divorce papers or court order that she had divorced her husband as alleged that it doubted her claim of fear of harm from her former husband for leaving or divorcing him that caused her to overstay in Hong Kong to seek protection, and that in any event even if she did divorce her husband and that he had made threats against her that such risk arose from their private matrimonial dispute between the 2 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 that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 15 March 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she repeated her claim as before and put forward the following grounds for her intended challenge:

(1)  That the Adjudicator did not consider her claim properly and just dismissed it without taking time to consider about her life and situation in her home country;

(2)  That the Adjudicator unreasonably refused to consider the documents submitted by her at the hearing because they were all in Indonesian without translation which the Adjudicator could not understand and refused to give her more time to have them translated;

(3)  That the interpreter was not helpful at all and easily got angry with her when she had difficulty understanding the translations from the interpreter who also rushed her with her evidence as he had another job to do on that day.

11.  By then the Applicant was also 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.

12.  As the last day of the 3 month-period for her to file her Form 86 fell on 25 February 2023, the Applicant was therefore some 18 days 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 18 days cannot be regarded as insignificant, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 25 November 2022 to her then reported address which is also the same as stated in her present application without being returned through undelivered post, I am unable to see any good or valid reason for her delay.    

14.  As for the merits, if any, of her intended application, those proposed grounds or complaints noted above are just some vague and bare assertions of the Applicant without any relevant or necessary particulars or specifics or elaboration as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or how did the interpreter fail to properly interpret her evidence to the Board, or what documents that the Board had refused to allow her more time to have them translated which even now in her present application that the Applicant has failed to produce or identify, and even if they were documents that might go to support the core of her claim of having indeed divorced her husband in 2017 which led to his threats against her as alleged, given the correct findings by both the Director and the Board that any such risk of harm from her former husband even if real arose from their private domestic or matrimonial dispute without any state or official involvement that it would be negated by state protection or internal relocation in their respective decisions, I am unable to see how any documents which the Applicant had wanted to produce during her appeal hearing that could in any way assist or advance her claim at all before the Board. As such, I do not find any of her proposed grounds 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, as noted above 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 even if real 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.  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.  Moreover, the Applicant recently on 1 December 2023 filed an affirmation requesting to withdraw her application as her problem in her home country has now been resolved and that she wants to go home to Indonesia.  

19.  In the premises, as I am for the given reasons 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 delay and in view of her latest confirmation that there is no more problem for her to return to her home country, 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