SITI MAESAROH v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 226/2018

[2020] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 226 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 ofthe decision of Torture Claims Appeal Board dated 11 August 2017 refused; and

2.  the application for 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 arrived in Hong Kong on2 July 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 July 2013 or within two weeks of its early termination.  When her contract was prematurely terminated on 21 July 2011, she however did not depart and instead overstayed and was arrested by police on 25 August 2011.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a loan shark for failing to repay the debts of her father and her husband.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Purwokerto Village, Blitar District, East Java, Indonesia.  After leaving school she worked as a domestic helper in Brunei, and in 2000 she married her husband and resided together with her parents in her home village.

3.  As her husband was a farmer with little income, she therefore returned to work in 2004 as a foreign domestic helper in Taiwan and in Hong Kong.

4.  In 2010 his father and husband had borrowed money from a local loan shark,but when they were unable to keep up with their monthly interest payments in 2011, the Applicant was told by her parents that the loan shark and his men had come to their home to demand for repayments, and when the loan shark learnt that the Applicant was working in Hong Kong, he threatened her parents and her husband to get money from the Applicant to settle their debts or else he would take away their house and kill the Applicant.

5.  On 21 July 2011 when her employment contract was prematurely terminated, the Applicant was afraid to return to Indonesia due to the threats from the loan shark, and so she overstayed in Hong Kong and upon her arrest by the police she raised a non-refoulement claim for protection, for which she later completed a Non-refoulement Claim Form on 12 October 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 30 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”).

7.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the loan shark upon her return to Indonesia as low due to the absence of past ill-treatment from him, that there was no evidence of any threats to the Applicant directly from the loan shark who had never even met her in the past, that in any event it was a private monetary dispute between her family and the loan shark 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 the loan shark to locate her.

8.  The Applicant then 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 3 August 2017before the Board during which she gave evidence and answered questions put to her by theadjudicator for the Board.  On 11 August 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found no evidence of any threats from the loan shark directedtowards the Applicant, that it was a monetary dispute without any official involvement thatstate or police protection would be available to the Applicant, as well as reasonable internalrelocation alternative that it would not be unduly harsh for the Applicant to move safely to other parts of Indonesia without any risk of being located by the loan shark.

10.  On 13 February 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking reliefwas given in her Form or in her supporting affirmation of the same date in which she merely exhibited copies of those decisions and other documents extracted from her appeal bundle before the Board.  

11.  By then she was already 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.  In the Applicant’s case, the three-month period within which she was to file her Form 86 expired on 11 November 2017, and hence she was three 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: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

13.  A delay of three months cannot be said to be insignificant, for which the Applicant did not provide any explanation in her affirmation, and as such I do not accept that she has any good reason for her delay.  Nor did she put forward any ground for her intended application.

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.  As noted above the Applicant did not put forward any ground for her intended challenge, nor did she identify any legal error or procedural unfairness in the Board’s decision, or even any particulars or elaboration as to why it might be considered as unfair or unreasonable, and in the absence of which I do not find any basis or merits in her intended application.

16.  Furthermore, the fact that it has 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.

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 orprocedural 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 delay, I refuse to extend time and accordingly dismiss her 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