NANI v. TORTURE CLAIMS APPEAL BOARD

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 decision of Torture Claims Appeal Board dated 8 December 2023 be refused; and

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

Observations for the Applicant:

1.   The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 25 March 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 25 June 2018 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 June 2018, she did not depart and instead overstayed, and was arrested by police more than 4 years later on 25 July 2022, and for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her debts.

2.   The Applicant was born and raised in Jawa Barat, Indonesia.  After leaving school she worked as a domestic helper in Saudi Arabia and Taiwan before coming to Hong Kong in 2010 to work as a foreign domestic helper to make her living.

3.  In 2017 she through her sister borrowed a loan from a local money-lender in her home district for her sister to repair and renovate their family home, but thereafter she failed to repay her loan, whereupon her creditor sent men to threaten and warned her sister that they would kill her when she returned to Indonesia.

4.  Henceforth after her last employment was prematurely terminated in June 2018, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 December 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 20 December 2022 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”).

6.  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 creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between just the 2 of them only 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 270 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 it would be difficult if not impossible for her creditor to locate her.

7.  On 4 January 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 18 July 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 8 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision[1] the Board accepted the Applicant’s claim of disputes with her creditor but found no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 7 May 2024 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)   The Board reached the decision wrongly in assessing her non-refoulement claim that her creditor and followers would not seriously harm or kill her with the outcome of this reasoning process internally inconsistent and logically flawed such that the Adjudicator’s decision is unlawful on the ground of irrationality;

(2)   That the Adjudicator reached the decision wrongly in assessing her non‑refoulement claim as unfair and unreasonable as required by the Wednesbury test in failing to recognize that her right to life must be protected by the criminal law from the extra-judicial killings that she may face if deported back to her home country;

(3)   That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void.

10.  By then the Applicant was however 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 day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for him to file his Form 86 fell on 8 March 2024, the Applicant was therefore some 2 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: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of 2 months must be considered as very substantial and inordinate, for which she explained in her supporting affirmation that being uneducated she needed more time to read and understand the decision and to prepare the necessary documents for her intended application but by then she was already out of time with her application.

13.  The record shows that the decision was sent on the same day of 8 December 2023 to the Applicant’s then reported address without being returned through undelivered post, and while the lack of legal assistance can never be accepted as valid justification of the failure to comply with the procedural requirements.  As such, 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, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what relevancy was state acquiescence to the Applicant’s case when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all.  As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge or any merits in her intended application either.

15.  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.

16.  In the Applicant’s case, the Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Indonesia, there is simply no justification to afford him 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 Applicant’s claim.

19.  For all 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 such 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