SUSILAWATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 143/2022

[2022] HKCFI 1732

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 143 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 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 30 September 2021 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 7 March 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 November 2020 or within 14 days of its early termination, but upon the expiration of her contract she did not depart and instead overstayed in Hong Kong, and was arrested on 24 November 2020. 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 creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Cilacap, Central Java, Indonesia. In 1991 she moved with her family to Waeflan, Maluku, West Java. After leaving school she married her husband and raised a family with a son.

3.  In 2006 she went to work in Malaysia, during which she was told by her family that her husband had divorced her and remarried someone else, while her son stayed with her parents in Maluku.

4.  In 2008 she returned to Indonesia to stay with her parents, and to assist her father to pay off his debts and to meet various expenses of her son, the Applicant borrowed a loan from a local money-lender with monthly interest payable until discharge of the loan.

5.  In order to make her loan repayments, the Applicant started to come to work as a foreign domestic helper in early 2009 by remitting money to her father in Indonesia every month to pay for her monthly interest payments, but upon the expiration of her last employment contract in November 2020 and without any income to make any further repayments for her loan, the Applicant was afraid to return to Indonesia, and so she overstayed in Hong Kong, and after her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 April 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 13 May 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 risk of harm from her creditor upon her return to Indonesia as low due to the absence of any past ill-treatment from him, that there is no evidence of any intention of her creditor to harm her other than to demand her to repay her loan, that in any event it was a private monetary dispute between the two 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 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 23 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 September 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor over her unpaid debts, and that in any event even if true that it was a private monetary dispute between the two of them without any official involvement that state/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 by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 16 February 2022 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)  That the Director and the Adjudicator reached their decisions wrongly in assessing her non-refoulement claim in that they were not fair or reasonable as required by the Wednesbury test in failing to that her right to life must be protected by criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)  That the Adjudicator failed to give her sufficient time and opportunity to arrange relevant evidence for her non-refoulement claim as well as her appeal;

(3)  That the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her claim;

(4)  That the Director failed to take account of the argument that the Applicant was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but failed to consider or give enough weight to such evidence and ruled otherwise which is a clear case of unfair attitude shown by the Director which is in itself enough to render hid decision void;

(6)  That the Director failed to consider that corruption and incompetency of the administration in her home country is still a very serious problem as reported by various human rights organizations which stated testament to the Applicant’s assertions; and

(7)  That the director failed to attain high standard of fairness required by Wednesbury test in the decision which should be considered unreasonable in the scope of public law.

11.  By then the Applicant was in fact already 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 three-month period for her to file her Form 86 fell on 30 December 2021, the Applicant was therefore almost 7 weeks 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 almost 7 weeks must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, nor did she attend the hearing of her application without any explanation, 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 such serious delay.

14.  As for the merits of her intended application, those proposed grounds put forward by the Applicant as listed above are however all just broad and vague assertions containing a few key words and phrases but without any particulars or specifics or elaborations or relevancy as to how they would apply to her case or how the Director or the Board had erred in their decisions, or why would state acquiescence or extra-judicial killings be relevant to her claim when there is clearly no evidence to suggest that she had ever been tortured by any law or public officials when her case based on her own facts was a private monetary dispute with her creditor without any official involvement, or in what way did the Director or the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them relevant to her case or reasonably arguable for her intended challenge.

15.  As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

16.  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.

17.  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 if true 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.

18.  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.

19.  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