WIWIN-SETYOWATI-SAMIN v. TORTURE CLAIMS APPEAL BOARD

HCAL 1070/2018

[2019] HKCFI 2457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1070 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  an extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 May 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

4.  when filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

5.  the court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

6.  if the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

7.  liberty to apply.

Observations for the Applicant:

1. The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 20 August 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 August 2013 or within two weeks of its early termination.  When her contract was prematurely terminated on 29 February 2012 she however did not depart and instead overstayed until 30 July 2015 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 former boyfriend in Indonesia for having a relationship with another man in Hong Kong.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Tanggul Welahan Village, Besuki Sub-district, Tulung Agung Regency, East Java, Indonesia.  After leaving school she started dating her former boyfriend from a wealthy family in the same village, and in September 1999 she came to Hong Kong to work as a foreign domestic helper but continued with her relationship with her boyfriend.

3. However, over the years and notwithstanding that her boyfriend had repeatedly urged her to return to Indonesia so that they could get married, the Applicant insisted in continuing with her employment in Hong Kong, which as a result had led to many arguments between the two of them.

4.  In 2012 when her then employment contract was prematurely terminated, the Applicant overstayed in Hong Kong and formed a relationship with a local resident until 2014 when their relationship ended, but soon she formed another relationship with another local resident with whom she subsequently became pregnant with their child, and when her former boyfriend in Indonesia heard about it he became furious and threatened to kill her upon her return to Indonesia and also to harm her family, and so shortly before she was due to give birth to a daughter in Hong Kong, the Applicant surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 3 November 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5. By a Notice of Decision dated 21 November 2016 the Director of Immigration (“the 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 (“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”).

6. In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that her former boyfriend would harm or kill her upon her return to Indonesia or that her perceived fear is real or foreseeable due to the absence of past ill-treatment from him, that their dispute was a personal private matter 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 258 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 work experience to move 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 former boyfriend to locate her.

7. On 6 December 2016 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 24 April 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 23 May 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found inconsistencies and contradictions in the Applicant’s account of her relationship with her former boyfriend in Indonesia and his alleged threats that it concluded that she was not a reliable witness and rejected her claim in its entirety that she would face any such threats of harm from her former boyfriend upon her return to Indonesia, and that in any event that both state protection as well as reasonable internal relocation within other parts of Indonesia that she can safely move to establish a new life without any risk of being located by her former boyfriend that her non-refoulement claim for protection failed on all applicable grounds.  

9.  On 11 June 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

 (1) procedural unfairness in that the Board had unlawfully fettered its discretion by reusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

 (2) procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

 (3) procedural unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense, or are the result of procedural errors or unfairness;

 (4) procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

 (5) procedural unfairness in that the hearing bundle was given to her only six days before her appeal hearing before the Board with the majority of the documents in English thereby given her insufficient time to prepare for the hearing due to her limited skill in English and being unrepresented and not able to find any reasonably cheap interpreter for her appeal; and

 (6) that the Board significantly relied on source of news not officially recognized or was simply hearsay or outdated which resulted in it making groundless speculations that it would be safe for her to return to her country of origin.  

10.  By then the Applicant was seriously late with her Form 86, 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.

11.  As the last day of the three-month period for the Applicant to file her Form 86 fell on 23 August 2017, she was therefore more than nine months late with her present 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than nine months must be considered as substantial or excessive, for which she explained at the hearing of her application that she was not aware of the stipulated time limit for her to file her Form 86 and that by the time she was able to find a friend to help her with her application, she was already way out of time. Ignorance of the law of course cannot be accepted as any valid reason or explanation, and while accepting that the Applicant was by then no longer assisted by DLS, the fact that it took her more than one year to get help to file her Form 86 is simply not credible in the circumstances.  As such I do not accept that she has provided any good reason for her serious delay.

13.  As for the merits of her intended application, the grounds proposed by her are just mainly broad and vague assertions containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or which COI was unofficially recognized or was hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I am unable to find any basis or merit in any of them, nor do I find them reasonably arguable for her intended challenge.

14.  As has been repeatedly emphasized by the Court of Appeal, 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.

15.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board with the majority of the documents in English without translation and thereby given her insufficient time to prepare for her appeal.

16.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interview and the Director’s decision should be well familiar to the Applicant as they had earlier all been already made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance,and that at her oral hearing she was assisted by an interpreter and that she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  As such I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

17.  The fact is that the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 46–54 of its decision and with the benefit of hearing her in her oral evidence and in her answers to questions raised of her claim during the oral hearing of her appeal, and in the absence of any error of law or procedure in her process before the Board or in its decision being clearly and properly identified by the Applicant, I am simply unable to find any reasonably arguable basis to challenge the finding of the Board.

18.  Furthermore, as it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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 her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.  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.

20.  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