SUMYATUN AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 1210/2018

[2021] HKCFI 1909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1210 of 2018

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 Applicants 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 2 February 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.  The 1^st Applicant (“A1”) is a 35-year-old national of Indonesia who last arrived in Hong Kong on 26 July 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 March 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 7 January 2016, she did not depart and instead overstayed in Hong Kong, and on 25 January 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 husband for having a relationship with her former boyfriend out of which she became pregnant with the boyfriend’s child, and after giving birth to a daughter, the 2^nd Applicant (“A2”) on 27 March 2016 in Hong Kong, she also raised a similar claim for A2 on the same basis and which was to be assessed jointly with hers. Both have subsequently been released on recognizance pending the determination of their claim.

2.  A1 was born and raised in Lampung, Indonesia. After leaving school she married her husband and raised a family with a son, but after her husband left the family and as she had to support her son, she therefore came to Hong Kong in 2013 to work as a foreign domestic helper, leaving her son in the care of her parents and elder brother.

3.  In July 2015 the Applicant returned to Indonesia for her annual leave for 2 weeks during which she spent time with a former boyfriend and became conceived with A2 before returning to Hong Kong on 26 July 2015 for her second employment contract.

4.  In September 2015 the Applicant realized that she had become pregnant with A2 and informed her sister in Indonesia. Later she received a phone call from her husband who somehow found out about her pregnancy and was furious over her affair with her former boyfriend that he threatened to kill her and her child when she returned to Indonesia which caused her to become fearful for her safety, and when her employment contract was terminated on 7 January 2016 due to her pregnancy, she was afraid to return to Indonesia, and so she overstayed and subsequently surrendered to the Immigration Department and raised her non-refouleemnt claim for herself and for A2 after her birth, and for which A1 completed a Non-refoulement Claim Form (“NCF”) on 22 July 2016 jointly for both of them with legal representation from the Duty Lawyer Service (“DLS”) but failed to attend any scheduled screening interview before an immigration officer.

5.  By a Notice of Decision dated 6 September 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Applicants’ claim and assessed the level of risk of harm from A1’s husband upon their 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 of any real intention of her husband to harm or kill her or A2, that in any event it was a domestic dispute between A1 and her husband without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) shows that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 million people spread across a vast territory that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for A1’s husband to locate them.

7.  By a Notice of Further Decision dated 2 August 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit 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”).

8.  By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 23 August 2016, and for which they attended an oral hearing on 8 December 2017 before the Board during which A1 gave evidence and answered questions put to her by the Adjudicator for the Board. On 2 February 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found no evidence that the Applicants had suffered any serious injuries inflicted by A1’s husband, that his threat to kill them was made out of frustration with no real intention to carry it out, that state/police protection would be available to them upon their return to Indonesia if necessary, that reliable COI shows that there are laws in Indonesia which prohibit domestic abuse and other forms of violence against women and children as well as protection for illegitimate children like A2 as an Indonesian citizen born out of legal wedlock from an Indonesian mother and with both government and non-government organizations to offer assistances and support for them in their situation, and that with reasonable internal relocation for them to move to other areas away from A1’s home district without any risk of being located by A1’s husband that their claim for non-refoulement protection failed on all applicable grounds.    

10.  On 27 June 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she merely stated that they reject the decision as it disregarded their dangerous situation but without providing any details or particulars or elaboration as to how it did so, nor did she do so at the hearing of the application or put forth any other ground for their intended challenge.

11.  By then the Applicants were also out of time with their application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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 consider that there is good reason for extending the period within which the application shall be made.

12.  As the last day of the three-month period for them to file their Form 86 fell on 2 May 2018, the Applicants were therefore 8 weeks late with their 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 HKCA 393.

13.  In the Applicants’ case, a delay of 8 weeks must be considered as very substantial, for which A1 explained at the hearing of the application that she never received the decision in the mail, and that it was only much later, of which she cannot recall, when she reported on her recognizance that she was informed by her immigration officer but by then they were already out of time with their application.

14.  The record shows that the Board’s decision was sent on the same day to the Applicants’ then disclosed address which is the same as stated in their present application without being returned through undelivered post, and in the absence of any further details or documentary evidence to corroborate A1’s bare assertions, I am not satisfied that the Applicants have provided any good reason for their substantial delay.

15.  As for the merits, if any, of their intended application, as noted above, the Applicants have failed to put forth any proper ground for their intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis or merits in their intended application.

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.  In the Applicants’ case, the Board rejected their claim essentially on its findings of no evidence even on the facts of their own case that either of them had been ill-treated by A1’s husband over her alleged affair with her former boyfriend which led to the birth of A2, that his threat to kill her and A2 made in just one phone call back in September 2015 was out of frustration with no evidence of any real intention to carry out for the thorough and detailed analysis and reasoning set out in paragraphs 22 – 28 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claim, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.  

18.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other parts 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.  I am of course mindful of the fact that A2, a minor born in 2016 and now aged 5, was not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, and hence it would be necessary to separately consider and examine whether her claim had been properly determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see if there are matters which may support potential minor-specific non-refoulement bases in her case but had not been properly advanced to the board due to lack of legal representation in her appeal before the Board, with such approach having recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office[2020] HKCA 971, and which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

21.  As properly noted by the Board in its decision [32], there was no allegation of state or official involvement in A2’s claim of risk which was fundamentally based on the threat of one individual made on one phone call to her mother even before she was born, and that her only concern as stated by A1 and to the Board was her welfare and protection upon her return to Indonesia, of which the Board did go on to consider from the relevant COI that she being an Indonesian citizen born out of legal wedlock from an Indonesian mother would be protected by the laws of her home country which prohibit domestic abuse and other forms of violence against women and children, and with assistances provided by the Indonesian government as well as non-government organizations which promote the rights and interests of women and children in Indonesia ([32(i)] & [32(ii)]).

22.  Furthermore, as noted in the Director’s decision based on information provided by A1 for their claim, it was her parents and elder brother who assisted in looking after her son after her husband had left her and when she came to work in Hong Kong (see [8]), and hence she would also have such support upon her return to Indonesia with A2. As such and given the specific nature of the claim raised on her behalf by A1, I do not see any possibility of other risk of harm which may be specific to A2’s claim but which had not been adequately advanced to the Board on her behalf due to lack of legal representation, and similarly I do not find any arguable merit in her intended judicial review against the Board’s decision. I therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity, as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended application.        

23.  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 for their substantial delay, I refuse to extend time and accordingly dismiss their 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