WARIANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 384/2018

[2019] HKCFI 749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 384 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 7 July 2017 refused; and

2.  leave to apply for Judicial Review dismissed.

It is further directed that:

3.  if the applicants intend 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, they 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 applicants 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 Applicants:

1. The 1^st applicant (“A1”) is a 43-year-old national of Indonesia who arrived in Hong Kong on 22 January 2002 with permission to work as a foreign domestic helper until the expiration of her employment contract on 22 January 2004, whereupon she started another contract with permission to stay for another two years, during which she formed a relationship with a torture claimant from Sri Lanka with whom she formed a relationship and subsequently gave birth on 24 February 2007 to a son, the 2^nd applicant (“A2”) in Hong Kong, and as a result her employment contract was prematurely terminated on 15 April 2007 when she did not depart and instead overstayed until 23 May 2007 when she surrendered to the Immigration Department, and whilst released on recognizance, she married the Sri Lankan torture claimant (“her husband”) on 28 June 2007 in Hong Kong, and subsequently raised a torture for herself and A2 on the basis that if they were to be refouled together with her husband to Sri Lanka they would be at the same risk as claimed in his torture claim, and after their torture claim had been rejected by the Immigration Department, they jointly lodged a non-refoulement claim on the same basis as before, and when her husband subsequently withdrew his claim, A1 proceeded with her claim with A2 with additional risk of fear of harm from her former fiancé for failing to marry him and from her family for marrying a non-Indonesian if refouled to Indonesia.

2. A1 was born and raised in Magetan, Jawa Timur, Indonesia where her parents and siblings still live.  After leaving school she worked as a domestic worker and came to work in Hong Kong as such in 2002.

3. In about 2005 A1 met her husband, a Sri Lankan who had also overstayed in Hong Kong and raised a torture claim that he would be harmed or killed by an influential politician in Sri Lanka and the police for having sex with the politician’s under-aged daughter if refouled to Sri Lanka.

4. After giving birth to A2 and overstaying her employment contract, A1 surrendered to the Immigration Department on 23 May 2007, and whilst released on recognizance she married her husband and lodged a torture claim for herself and A2 on the same basis that if refouled with her husband to Sri Lanka, they would also be at the same risk of harm as under his claim, and agreed that their torture claim be assessed together with that of her husband.

5. On 31 May 2013 their torture claim were rejected by the Immigration Department, of which they did not appeal to the Torture Claims Appeal Board (“the Board”), but upon the commencement of the Unified Screening Mechanism (“USM”), they lodged a non-refoulement claim together as a family on the same basis as before, for which they jointly completed a Supplementary Claim Form (“SCF”) on 28 May 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6. In her joint SCF A1 also raised additional claim if refouled to Indonesia that she and A2 would be harmed by her former fiancé for failing to marry him and by her family for marrying a non-Indonesian man against their wish.

7. By a Notice of Decision dated 30 November 2015 the Director of Immigration (“the Director”) rejected their claim on all then applicable grounds other than torture claim,namely risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights (“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”).

8.  In his decision the Director took into account all the relevant circumstances of their claim and assessed the risk of harm to them in Sri Lanka as low due to the low intensity and frequency of past ill-treatment from the politician, that there is no evidence of any past ill-treatment to the applicants in Indonesia, that in the absence of any official involvement that state or police protection would be available to the applicants either in Sri Lanka or Indonesia if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in both Sri Lanka and Indonesia that it would not be unduly harsh for the applicants to move to either country where they can live without any real or substantial risk of harm from anyone.

9.  By a Notice of Further Decision dated 13 February 2017 the Director again rejected the applicants’ claim in the absence of any additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.  By then A1 and her husband were in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 14 December 2015.  On 19 July 2016 A1’s husband withdrew his appeal, leaving only the appeal from the applicants before the Board, and for which they attended an oral hearing on 27 February 2017 with legal representation from DLS during which A1 gave evidence and answered questions put to her by the adjudicator for the Board with submission made on their behalf by their lawyer. On 7 July 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found no evidence that the applicants would face any risk of harm either in Sri Lanka in which they had never lived and where they would not be refouled given it was not their country of origin, or in Indonesia in the absence of any past ill-treatment to them there either, and that reliable COI show that both state protection and reasonable internal relocation alternatives are available to them that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other part of Indonesia away from her home district in large cities where it would be difficult if not impossible for her former fiancé or her family to locate them if indeed such risk still persisted.

12.  On 8 March 2018 A1 filed a Form 86 for herself and A2 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for their intended challenge:

 (1) error/misdirection in law in failing to apply the relevant legal principle correctly and with due diligence in conducting enquiry into the relevant COI in the consideration of their claim;

 (2) procedural impropriety in failing to conduct sufficient inquiry and critical analysis of the relevant COI in the consideration of their claim;

 (3) procedural Impropriety in failing to properly apply the guidelines of the UN Committee Against Torture in the assessment of their claim; and

 (4) procedural impropriety in failing to consider the relevant COI the condition that they would face in their return to Indonesia and the psychological harm that they will suffer if refouled to Indonesia.  

13.  By then the applicants were some five months late with their 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.

14.  In considering whether to extend time the Court shall have regard to various matters including the length of the delay; the reasons for the delay; the merits of the intended application, prejudice to the putative respondent and to public administration; and questions of general public importance: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration CACV 63/2015.

15.  In the present case, as the Board’s decision was made on 7 July 2017, the last date for the applicants to file their Form 86 under the said rule fell on 7 October 2017, and hence when they filed their Form 86 on 8 March 2018, they were some five months late which must be regarded as a very substantial delay, for which A1 explained in her affirmation that as she had to apply for legal aid for her intended application for judicial review and for financial reason as she had to support her son, neither of which can be accepted as valid for such serious delay, nor did she appear at the scheduled oral hearing of her application without any explanation.  As such I do not accept that the applicants have given any good reason for their substantial delay.   

16.  As for the merits of their intended application by reference with their proposed grounds, all of which are however just broad and vague assertions of the applicants containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Director or the Board had erred in their decisions,or in what way did they fail to conduct proper inquiry in the relevant COI in their assessment of their claim or the condition which they would face in Indonesia.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and in the absence of any legal error or procedural unfairness being clearly and properly identified by them, I do not find any basis or merit in their proposed grounds, nor do I find any of them reasonably arguable for their intended challenge.

17.  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 Re Litoun Mounsy [2018] HKCA 537. 

18.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them 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 applicants’ claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and in the absence of any good reason I refuse to extend time for their seriously late application, and dismiss it accordingly.

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