FITRIA-NUR-HIDAYATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 866/2018

[2020] HKCFI 2243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 866 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 June 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Indonesia who arrived in Hong Kong in January 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment contract was prematurely terminated on 10 September 2013, she did not depart and instead overstayed until 14 August 2014 when 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 creditor for failing to repay her loan, and upon giving birth to a daughter on 25 October 2014 out of wedlock to a man in Hong Kong, she also raised a similar claim for her daughter on the same basis and with an additional claim of fear of harm from her father for so bringing shame to the family.  They were released on recognizance pending the determination of their claim.

2.  The Applicant was born and raised as a Muslim in Surakarta, Central Java, Indonesia.  After leaving school she worked in a garment factory, married her former husband and raised a family of three children in her home district.

3.  In about 2006 her husband lost his job and the family fell into financial difficulty, and so she borrowed a loan from the local loan shark with monthly interest payment until discharge of the loan.

4.  In 2009 her husband left and deserted the family, and in order to be able to repay her loan, the Applicant therefore went to Singapore to work as a domestic servant and to remit her monthly interest payment to the loan shark from her salary, and in January 2013 she came to work in Hong Kong as a foreign domestic helper, but when her employment contract was prematurely terminated on 10 September 2013, and fearful of harm from the loan shark and her father, she therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection for herself and her daughter, and completed a Non-refoulement Claim Form for each and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 10 April 2015 the Director of Immigration (“the Director”) rejected the claim of the Applicant and her daughter on all then 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 claim of the Applicant and her daughter and found no reasonable likelihood that their perceived fear of ill-treatment from the Applicant’s father or creditor upon their return to Indonesia is real and foreseeable 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 on the part of the Applicant’s father or creditor to harm or kill them, that in any event their disputes were private monetary or family matters without any official involvement that state or police protection would be available to the Applicant and her daughter 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 253 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 with her daughter 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 or creditor to locate them.

7.  By a Notice of Further Decision dated 23 March 2017 the Director again rejected the claim of the Applicant and her daughter in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their 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 and her daughter were already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 29 April 2015, and for which they attended an oral hearing on 15 September 2016 before the Board during which the Applicant gave evidence and answered questions put to her by the adjudicator for the Board.  On 2 June 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted the Applicant’s claim of disputes with her creditor and her father but found no evidence of any real intention on their part to harm the Applicant or her daughter in particularly her father who has changed his attitude towards them and has shown concern for them instead, and that in any event with state/police protection available upon their return to Indonesia as well as reasonable internal relocation for the Applicant to move safely with her daughter to other area away from her home district without any risk of being located by her creditor that their claim for non-refoulement protection failed on all applicable grounds.     

10.  On 18 May 2018 the Applicant filed a Form 86 for herself only 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 in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  She was by then also way out of time with her 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 2 September 2017, the Applicant was therefore more than 8 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.   

13.  In the Applicant’s case, a delay of more than 8 months must be considered as very substantial or excessive, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent to her last reported address and has not been returned through undelivered mail, I do not see any good reason for her such serious delay.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has not put forward any proper ground for her application.  As such and in the absence of any error of law 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 reasonably arguable basis for her intended challenge. 

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, 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 him 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 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