RINA MULYANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 654/2018

[2020] HKCFI 2140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 654 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 decisions of Director of Immigration dated 17 June 2016 and 12 April 2017 respectively and the decision of Torture Claims Appeal Board dated
28 July 2017 refused; and

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

Observations for the Applicants:

1.   The 1^st Applicant (“A1”) is a 32-year-old national of Indonesia who first arrived in Hong Kong on 19 February 2012 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 was prematurely terminated on 25 April 2015, she did not depart and instead overstayed, and on 31 July 2015 she surrendered to the Immigration Department, and during her release on recognizance she gave birth to her son, the 2^nd Applicant (“A2”) on 6 September 2015 out of a relationship with an Indonesian man of Chinese ethnicity in Hong Kong, and subsequently raised a non-refoulement claim jointly for herself and A2 on the basis that if they returned to Indonesia they would be harmed or killed by A1’s parents for her relationship with a non-Muslim man of different ethnicity.  They were subsequently released on recognizance pending the determination of their claim. 

2.   A1 was born and raised as a Muslim in Sumbersari, Ngampel, Kendal, Central Java, Indonesia where her parents and her siblings were all Muslims.

3.  After leaving school she married her husband in 2005 and continued to live in her parents’ home where she raised a son before working as a factory worker in West Jakarta in 2008 and then as a domestic helper in Taiwan in 2010.

4.  In 2012 she returned to Indonesia and divorced her husband, placed her son in the care of her parents, and came to Hong Kong to work as a foreign domestic helper, during which she formed a relationship with a man in Hong Kong from a Chinese Indonesian family, but when she informed her father of their relationship and her intention to marry the Chinese man, her father strongly objected to her marrying someone of different race and a non-Muslim, and insisted that she ended their relationship.

5.  The Applicant did not heed her father and continued with the relationship, and on 14 August 2014 she married her boyfriend, and soon became pregnant with A2 in early 2015, but when her employment contract was prematurely terminated by her employer on 25 April 2015, and when she later told her father of her marriage and pregnancy, her father became furious and threatened that if she returned to Indonesia he would kill her for dishonouring their family, and so she did not depart and instead overstayed in Hong Kong and raised her non-refoulement claim for protection for herself and A2, for which she completed a Non-refoulement Claim Form on 11 April 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 17 June 2016 the Director of Immigration (“the Director”) rejected the Applicants’ claim 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s parents upon their return to Indonesia as low due to the absence of any past ill-treatment from them, that it is not accepted that A1’s parents had any real intention to harm or kill the Applicants, that it was a personal family dispute between them without any official involvement that state protection would be available to the Applicants 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 255 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other area of Indonesia away from her home district in large cities where it would be difficult if not impossible for her parents to locate them.   

8.  By a Notice of Further Decision dated 12 April 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may 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”).

9.  By then the Applicants 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 4 July 2016, and for which they attended an oral hearing on 22 May 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 28 July 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found a number of significant inconsistencies in the A1’s evidence which affected the credibility of her account of events and of her claim of risk of harm from her parents if returned to Indonesian, which was further undermined by her attempt to conceal the fact that she did visit her parents in Indonesia in June 2014 and that as recent as in 2016 that her mother did ask her about her son in Hong Kong and suggested that they should go home in Indonesia, and that in any event A1 could safely move with her husband and A2 to live elsewhere in Indonesia without any risk of any harm from her parents that the Applicants’ claim for non-refoulement protection failed on all applicable grounds.  

11.  On 17 April 2018 the Applicants filed their 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 in their Form, and in her supporting affirmation of the same date A1 merely attached copies of those decisions and previous documents without putting forward any proper or valid grounds for their intended challenge, nor did she request any oral hearing for their application.

12.  By then the Applicants were also seriously out of time with their Form 86, 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.

13.  As the last day of the three-month period for the Applicants to file their Form 86 fell on 28 October 2017, they were therefore more than 5 months late with their 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: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicants’ case, a delay of more than 5 months must be considered as substantial and excessive, for which the Applicants did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to their last reported address without being returned through undelivered mail, I am unable to see any good reason for their serious delay with their application.

15.  As for the merit of their intended application, as noted above, the Applicants also failed to put forward any proper or valid grounds for their intended challenge, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for them to challenge the finding of the Board. 

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.  The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them 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 Applicants’ claim.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reasons for their serious delay, I refuse to extend time and accordingly dismiss their 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