SULIYATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 404/2019

[2023] HKCFI 502

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 404 of 2019

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 19 September 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 7 October 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 October 2015 or within 14 days of its early termination, but when it was prematurely terminated on 12 January 2014, she did not depart and instead overstayed in Hong Kong, and was arrested by police almost one year later on 23 December 2014. After she 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 former husband’s creditor over his unpaid debts, and while released on recognizance pending the determination of her claim, she formed a relationship with a Nepali man said to be a local resident and with whom she gave birth to a son on 6 September 2016, and for whom she also raised a non-refoulement claim on the same basis.

2.  The Applicant was born and raised in Locondong, Sub-district Rawalo, District Banyumas, Central Java, Indonesia.  After leaving school she worked as a domestic helper in Singapore where she met and married her former husband Paiman (“Paiman”) in 2001 when they moved back to her home district to raise their family with 2 children.

3.  In 2005 her husband started his own furniture business in Jakarta by borrowing a loan from a local money-lender with her parents’ land as security and with the Applicant and her mother signing the loan agreement to repay the loan within one year by monthly instalments with monies to be sent by her husband from Jakarta.

4.  However, after 2 months her husband failed to remit any more money from Jakarta, and when the Applicant was unable to make any loan repayments, the money-lender started to make threats against her and her parents.

5.  Several months later her husband returned home and admitted of having lost his business in Jakarta, and after a big quarrel with the Applicant, he then left and disappeared without paying his loan, and eventually they dissolved their marriage.

6.  As a result the money-lender confiscated her parents’ land, but as it was still not sufficient to discharge the loan, the Applicant was given further time to pay off the balance by instalments, for which she therefore came to Hong Kong in February 2009 to work as a foreign domestic helper so as to remit money to her parents for repayment of the loan.

7.  However, when her last employment was prematurely terminated on 12 January 2014, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, and upon giving birth to her son later on 6 September 2016 from her relationship with her Nepali boyfriend, she also raised the same claim for her son, and for which she completed a Non-refoulement Claim Form (“NCF”) on 14 March 2017 jointly for the two of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 11 April 2017 the Director of Immigration (“The Director”) rejected the claim of the Applicant and her son on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her son and assessed the level of risk of harm from the money-lender and his men upon their return to Indonesia as low due to the low frequency or intensity of past ill-treatment from them who were not even aware of the existence of the Applicant’s son, that there is no evidence of any real intention of them to seriously harm or kill the Applicant other than to press her to repay the loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant and her son if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move with her son 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 the money-lender to locate them.

10.  On 24 April 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) for herself and her son against the Director’s decision, and for which they attended an oral hearing on 4 September 2017 before the Board during which the Applicant gave evidence for herself and her son and answered questions raised of their claim by the Adjudicator for the Board. On 19 September 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found significant inconsistencies discrepancies and lack of details in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from the money-lender for her overstaying in Hong Kong as untruthful, that her claim was a fabrication so as to prolong her stay in Hong Kong, and that in any event even if such claim is true that it was a private monetary dispute without any official involvement that state or police protection would be available to her and her son upon their return to Indonesia as well as support and assistance from NGOs for her and her son to settle in the country without any risk of harm from the money-lender that their claim for non-refoulement protection failed on all applicable grounds.

12.  On 13 February 2019 the Applicant filed a Form 86 for herself only for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date other than a claim that she is now living apart from her Nepali boyfriend and hence she needs to stay in Hong Kong to look after her son by herself but without putting forward any proper ground for her intended challenge, nor did she subsequently attend the hearing of her application without any explanation.

13.  Given the fact that the Applicant did in the past include her son in her claim before both the Director and the Board, but somehow filed her Form 86 naming herself only as the applicant without her son, and that it was not possible to ascertain from either her Form or her supporting affirmation for any indication whether the omission was deliberate or accidental, but as noted above that she failed to attend the hearing when it was not possible to obtain any clarification from her regarding her son’s claim, and since it would not be appropriate for the Court to make any inference or speculation one way or the other, henceforth I propose to deal with her application as it is with her as the only named applicant relevant to her intended challenge of the Board’s decision.

14.  By then the Applicant was however also seriously out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4A requires that an application for leave to apply for judicial relief 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.

15.  As the last day of the three-month period for her to file her Form 86 fell on 19 September 2017, the Applicant was therefore more than 13 months 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.

16.  In the Applicant’s case, a delay of more than 13 months must be considered as very substantial and inordinate, for which she did not provide any explanation in her Form or affirmation, nor as noted above did she attend the hearing of her application, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

17.  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, 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.

18.  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.

19.  In the Applicant’s case, the fact is that it has been correctly established by the Director in his 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, 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.

20.  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.

21.  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