DARMAWATI BARSUDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2215/2019

[2024] HKCFI 3341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2215 OF 2019

_____________

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant asked for a hearing. She appeared before the Court on 4 November 2024.

3.  Time for the applicant to file Form 86 expired on 26 July 2019. The applicant filed her Form 86 on 2 August 2019. Her application is late for 7 days only. I shall deal with this issue below.

The applicant

4.  The applicant, aged 44, is an Indonesian. Her employment contract as a foreign domestic helper (“FDH”) was prematurely terminated on 14 October 2013 and she overstayed since 29 October 2013. On 23 June 2014, the applicant was discovered to be an overstayer when registering the birth of her baby and she was sentenced to imprisonment of 6 months on 10 September 2014. The applicant made a non-refoulement claim on 11 December 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by her elder brother because she married a non-Muslim in Hong Kong and even gave birth to a child for him.

5.  According to the applicant, she first met her Nepalese husband in Hong Kong in around 2009. They started a relationship in around 2013, shortly after which the applicant got pregnant. In August/September 2013, when the applicant told her elder brother about her pregnancy, he scolded her over the phone and threatened to kill her as he could not accept that she got pregnant out of wedlock with a non-Muslim man. On 15 May 2014, the applicant gave birth to her child and she married her Nepalese husband in 2015.

6.  After giving birth to her child, the applicant contacted her younger sister who told her that she was disowned by the family. When she last contacted her sister in July 2016, she was unable to provide her with further updates because she had moved out. The applicant was of the view that she could not seek protection from the police, but admitted that she knew nothing much about the system of police protection. She also considered internal relocation not viable because she had no relatives or friends to rely on elsewhere within Indonesia.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 28 March 2017 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill- treatment from her elder brother indicated a small future risk of harm upon her return to Indonesia [15]; (ii) state protection would be available and that interfaith marriage was not forbidden in Indonesia according to the country of origin information [16]-[19] and (iii) internal relocation would be viable [20]-[23].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 28 May 2018, the Board conducted an oral hearing.

11.  The Board found significant issues relating to the applicant’s credibility because she claimed during the hearing that she had been assaulted by her elder brother, which was never mentioned in her previous evidence [17]. Given the issue on her credibility, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [21]-[34], [37]-[40].

12.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

13.  The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decisions.

14.  In her affirmation in support of her application, the applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

15.  As mentioned in paragraph 2, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she has a child who is 16 years of age. The father has passed away.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.  For the reasons given, the Board rejected her evidence in support of her claim. This is a matter of the credibility of her evidence, which is squarely within the province of the Board. The applicant has raised no valid reason to challenge the Board’s Decision.

20.  I find that the applicant has failed to show that there is realistic prospect in her intended application.

DISPOSITION

21.  I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.