NAWANGSIH TALAM v. TORTURE CLAIMS APPEAL BOARD

HCAL 1517/2021

[2023] HKCFI 2169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1517 OF 2021

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 oral submissions by the Applicant in open court / 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 31 October 2018 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Indonesia who was a former foreign domestic helper employed in Hong Kong but had overstayed since 10 January 2016 after the termination of her employment, and some 4 months later on 6 May 2016 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 former boyfriend for refusing to marry him or to repay his money to him. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Subang, West Java, Indonesia. After leaving school she met her former boyfriend and soon formed a relationship with him, during which she rebuilt her house in her home district with money from him as their future matrimonial home as they planned to get married in 2014.

3.  Meanwhile in 2012 the Applicant went to Taiwan to work as a domestic servant for 2 years, and upon completing her contract and returning to Indonesia, she discovered that her boyfriend had been cheating on her while she was away in Taiwan, and decided to end their relationship and called off their marriage, but her boyfriend refused and instead demanded that she should either repay all his money spent on rebuilding her house or to marry him as planned, of which the Applicant chose the former proposal but could only do so by instalments, which was however refused by her boyfriend who then threatened to kill her if she failed to do either.

4.  Shortly after their confrontation, the Applicant’s brother was found dead on the road in the vicinity of his home, which the police subsequently regarded as a traffic accident, but that the Applicant suspected that he was killed by her former boyfriend as a warning to her.

5.  As a result the Applicant became fearful for her life and fled to Jakarta, and some six or seven months later in 2015 she departed Indonesia for Hong Kong to resume working as a foreign domestic helper, but when her employment was prematurely terminated in January 2016, she was afraid to return to Indonesia and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 30 April 2018 and attended screening interview before the Immigration Department with legal representation.

6.  By a Notice of Decision dated 11 June 2018 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 former boyfriend upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence that he had killed her brother other than the Applicant’s own suspicion and speculation, nor is there any evidence of any real intention of him to seriously harm or kill her or to still have any further adverse interest in her after all these years since she left the country, that in any event it was a private relationship dispute between just the 2 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 areas of the country away from her home district in large cities such as Jakarta where she had stayed before without incidents and where it would be difficult if not impossible for her former boyfriend to locate her.

8.  On 20 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but 4 months later on 23 October 2018 she wrote to the Board to apply to withdraw her appeal stating that all her problems with her former boyfriend were “finished” and that it was safe for her to return to her home country.

9.  By a letter dated 31 October 2018 the Board allowed the Applicant’s application upon being satisfied that her withdrawal the appeal was freely sought, that she understood the consequences of the withdrawal, and that there was good reason for her to do so as she considered that it was safe for her to return to her home country, and that the Board accordingly directed that her appeal/petition be withdrawn, that no further action would be taken in respect thereof as it had now been disposed of, and that the Board also confirmed the Director’s decision.

10.  However, some 3 years later on 2 November 2021 the Applicant filed a Form 86 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 in which she just repeated her claim as before of fear of being harmed or killed by her former boyfriend if refouled to her home country but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  By then the Applicant was also seriously 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 3 month-period for her to file her Form 86 fell on 31 January 2019, the Applicant was therefore some 2 years 9 month 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 2 years and 9 months must be considered as extremely substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, 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.

14.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth any proper ground for her intended challenge of a decision which had in fact acceded to her own request to withdraw her appeal in the sense of being a valid withdrawal or abandonment upon her clear indication in writing that her problems with her former boyfriend had been resolved and that it was safe for her to return to her home country. As such, and as stipulated under Section 37V (2)(b) of the Immigration Ordinance that a non-refoulement claim rejected by the Director is finally determined when the appeal against it was disposed of by the Board, and as held by the Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, that notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal, as otherwise not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals (see [41] of the judgment).

15.  In the present case, in the absence of any explanation from her as to why after 3 years of having withdrawn her appeal that the Applicant now wants to seek to challenge the Board’s decision in allowing her to withdraw her appeal, it looks therefore suspiciously to me to be the same kind of last minute attempt and abuse by her as noted by the Court of Appeal above to delay her removal from Hong Kong. In the circumstances, I am unable to find any reasonably arguable basis for her intended challenge, nor do I 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.  The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision 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.

18.  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 the Director’s consideration and determination of the Applicant’s claim or the Board’s decision is disposing of her appeal at her own request.

19.  Furthermore, the Applicant on 26 June 2023 filed an affirmation to withdraw her application for the same stated reason as earlier given to the Board that her problem in her home country has been solved without any further necessary details or particulars or elaboration.

20.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation to withdraw her application, 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