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HCAL 221/2021
[2021] HKCFI 2187
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 221 of 2021
BETWEEN
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Nur Febri Prihatini |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
1. Extension of time for application for leave to apply for Judicial Review be refused;
and
2. Application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The applicant came to Hong Kong under a domestic helper contract in 2010. She was last allowed to stay until 23/7/2016. She was arrested by the police for theft on 29/11/2014 [1]. Her contract was terminated on the same day. She filed the non-refoulement claim in this case in January 2015.
Background [2]
2. The applicant was born on 17/2/1983 in Banjarnegara, Jawa Tengah, Indonesia. She got married in 2008. She had a son. Her parents were deceased. She had 4 siblings in Indonesia. She had education for 9 years. She was a domestic helper in Malaysia and Singapore from 2004 to 2008.
3. She first came to Hong Kong as a domestic helper in 2010. In 2011 while in Hong Kong, she developed a lesbian relationship with Danil. Her husband was angry about the relationship and threatened to kill her. Thereafter, her husband sent threatening calls and texts daily. He also threatened Danil on the Internet.
4. She had changed her phone number in 2014 and blocked her husband on the Internet. She however feared that her husband and his friends could still locate her if she returned to Indonesia. She was afraid to relocate to other cities in Indonesia albeit there were cities with social circles more tolerant to lesbians. It was difficult to find a job too. She was not confident if the police could help.
5. She feared that her husband and his friends would harm her if she returned to Indonesia. They would not accept her lesbian relationship with Danil.
The decision of the Director [3]
6. The Director found that the risk of harm from her husband and friends was low for the following reasons:
(a) Although there were threats from her husband on the phone or through the Internet, there was no actual ill-treatment while she was in Indonesia. She only changed her sexual inclination after she came to Hong Kong.
(b) Indonesia was a large country with a huge population. It would be very difficult for her husband to locate her even in Jakarta. There was no evidence that her husband had the resources to do so. It was only her speculation that her husband’s friends would involve themselves in this dispute.
(c) Her husband was a construction worker. There was no evidence that the government or any public official was involved.
(d) Homosexuality was not illegal under the current Penal Code in Indonesia. Although there were some conservative Islamic provinces[4] which prohibited homosexual activities, human rights organizations and the Indonesian Human Rights Commission were keen to lobby amendment of those laws. In recent years, there were pro-LGBT organizations formed to promote mutual support and group activities. The government had provided sufficient protection for lesbian groups. The National Commission On Violence Against Women and the National Human Rights Commission also facilitated activities and campaigns on LGBT rights organized by community organizations.
(e) The Director accepted that there was widespread corruption in Indonesia. The judiciary was not efficient. The Indonesian government had adopted measures to tackle corruption. The Corruption Eradication Commission (‘KPK’) carried out investigations and prosecutions in high profile cases. There were measures to improve the performance of the police. There were anti-corruption courts set up to handle trials. There were organizations which assisted in the protection of women and children victims of sexual assault and trafficking in women. The Director found there was sufficient State protection.
(f) Indonesia was a large country with big population. Relocation was permitted by law. The applicant might move to other cities like Jakarta. Chances that her husband could locate her were minimal. The Director concluded that it was not unduly harsh for the applicant to relocate and avoid the threats from her husband and his friends.
7. The Director dismissed the non-refoulement claim on BOR 3, persecution and torture risk grounds on 14/8/2015.
8. The Director further dismissed the claim on BOR 2 ground on 23/6/2017 as the applicant did not submit additional facts.
Decision of the TCAB [5]
9. A hearing was fixed on 20/4/2016. The applicant did not attend. The adjudicator sent a notice to the applicant requesting her to explain within 7 days. The notice was sent to the address given by the applicant on the Notice of Appeal. There was no response from the applicant.
10. Meanwhile, there was another hearing set on 22/11/2017. It was in relation to the further Decision dated 23/6/2017 about the BOR 2 claim. The applicant did not attend. The notice of hearing was sent to the same address. There was no explanation from the applicant.
11. It transpired that the notices of hearing for both hearings were returned by the Post Office. The notices were sent to the last known address on the Notice of Appeal filed by the applicant. The Director further confirmed that the applicant had not reported to the Immigration since 2017. The adjudicator decided to determine the appeal on paper.
12. The adjudicator pointed out that he could not determine the credibility of the applicant’s assertion as she failed to attend the hearings. There was no oral evidence from the applicant. In the circumstances, the adjudicator was satisfied that the COI did not support any risk of harm warranting non-refoulement protection as the applicant asserted.
13. The adjudicator dismissed the appeal on all grounds on 12/3/2019.
Judicial review
14. The applicant applied for leave for judicial review on 24/2/2021. At that time, she was detained in CIC [6]. She sought to review the TCAB decision. She was about 20 months out of time.
15. In her Form 86, she alleged that the decision of the TCAB was wrong and unreasonable.
16. The applicant was out of time in filing the leave application by about 20 months. She should have applied for extension of time. She did not provide any explanation for the delay which was substantial.
17. In considering whether there is any good reason for the delay, I have considered factors including the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted. [7]
18. An oral hearing was held on 1/6/2021 upon the request of the applicant. She had been released from CIC. She had nothing further to update. She was still scared to go home.
19. In response to the questions from this court, she explained that she had received the notice of hearing for the 1st hearing fixed on 20/4/2016 before the TCAB. She did not attend as she was afraid she might be sent back to Indonesia. As to the 2nd hearing on 22/11/2017 before the TCAB, she had moved out of the address already. She did not inform the Director of the change of address.
20. The applicant deliberately absent herself from the 1st hearing. She did not border to explain. For the 2nd hearing, the applicant had not reported the change of address to the Director or the TCAB in accordance with s.37ZA (2) of the Immigration Ordinance. She must bear the consequence. Given this information, I am satisfied that the adjudicator was right to determine the appeal on paper.
21. Having considered the evidence, I agree with the reasons of the adjudicator. I find no error of law and procedure in relation to the TCAB decision dated 12/3/2019. The decision is reasonable.
Conclusion
22. In my judgment, there is no good reason for extending the time for filing the leave application. The intended judicial review is not reasonably arguable. There is no realistic prospect of success. I refuse leave for the judicial review.
Dated the 27th day of July 2021.
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(Mike MAK) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 27 July 2021
Nur Febri Prihatini
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27 July 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2122/15/8/143/I171
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 732/15 &
RBCZ 9001937/17
(formerly RBCZ 10289/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was eventually sentenced to imprisonment for 4 months in February 2015 for 2 counts of theft.
[2] Decision of the Director dated 14/8/2015, §§6.1—6.19.
[3] Decision of the Director dated 14/8/2015, §§15—18.
[4] South Sumatra and Aceh province.
[5] Decision of the TCAB dated 12/3/2019, §§37—49.
[6] She had since released and gave a new address to the Director.
[7] H v Director of Immigration [2020] HKCFA 22, para. 37; AW v Director of Immigration CACV 63/2015,
§§26—27.
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