TRI WIDAYATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 213/2021

[2021] HKCFI 799

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 213 of 2021

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 31 October 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 27 July 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 August 2015 or within 2 weeks of its early termination, but when her contract was prematurely terminated on 1 March 2015, she did not depart and instead overstayed, and was arrested by police on 22 July 2015. 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 father’s creditor for failing to repay his loan. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Garum Blitar, Jawa Timur, Indonesia. After leaving school she remained residing with her parents and worked as a domestic helper in her home district.

3.  In 2003 her mother fell into ill-health due to her heart problem, and to meet her medical expenses, her father borrowed a loan from a local money-lender, but later when he was unable to repay his loan, the money-lender came to the Applicant’s home and made threats against her father and the family, but when the loan still remained outstanding, the money-lender returned with his men and beat the Applicant’s father and brothers and raped the Applicant, and threatened to take the Applicant away as his bribe if the loan was still remained unpaid.

4.  Fearing for her life, the Applicant therefore fled to Hong Kong in 2004 to work as a foreign domestic helper, but when her last employment contract was terminated on 1 March 2015, she did not depart and instead overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 September 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 26 October 2015 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 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”).

6.  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 father’s creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between her father and his creditor 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 200 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 father’s creditor to locate her.

7.  By a Notice of Further Decision dated 1 February 2017 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”).

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 5 November 2015, but for which she failed to attend the scheduled oral hearing on 17 March 2017 before the Board or to provide any explanation thereafter for her absence. The Board therefore proceeded to deal with her appeal in her absence and on papers, and on 31 October 2017 it dismissed her appeal and confirmed the Director’s decisions.

9.  In its decision the Board accepted the Applicant’s claim of threats from her father’s creditor but found no evidence of any official involvement in her dispute with her father’s creditor that state or police would be available to her if needed upon her return to Indonesia as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located by her father’s creditor that her claim for non-refoulement protection failed on all applicable grounds.    

10.  On 23 February 2021 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given either in her Form or in her supporting affirmation of the same date for her intended challenge, nor did she request any oral hearing for her application.

11.  By then the Applicant was also seriously out of time with her intended 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 31 January 2018, 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, for which she did not provide any explanation in her supporting affirmation, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her serious delay, nor do I find any merits in her intended application in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being identified by the Applicant.   

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 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.       

16.  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.

17.  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 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