UMAYAH SAINO v. TORTURE CLAIMS APPEAL BOARD

HCAL 2032/2018

[2021] HKCFI 1783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2032 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 (counsel for) the Applicant in open court / the Applicant being absent 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 1 December 2017 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Indonesia who last arrived in Hong Kong on 5 August 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 5 August 2017 or within 2 weeks of its early termination, but when her contract was pre-maturely terminated on 11 January 2016, she did not depart and instead overstayed until 24 May 2016 when 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 a fellow villager for refusing to marry him as arranged by both families when she was twelve years old and/or risk of discrimination/persecution against her as a Muslim for having given birth to illegitimate children out of wedlock with a man in Hong Kong. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in Tulung Agung, Indonesia. When she was twelve years old she was told by her mother that when she grew up she was to marry a boy in the village by the name of Kusni as arranged between the two families.

3.  After leaving secondary school she became engaged to Kusni as arranged by their families before she went onto an Islamic boarding school, and thereafter she went to work in Trenggalek as a shop assistant.

4.  In 1994 she was told by her family that a wedding date had been fixed for her marriage to Kusni, but as she did not want to marry Kusni, she decided to leave Indonesia by moving to Malang to apply to work as a foreign domestic helper in Hong Kong, which she did in 1995 when she departed Indonesia to start her first employment in Hong Kong, returning to Indonesia only for holidays during which she stayed away from her home village by residing in her sister’s place as she heard that Kusni and his family were furious over her refusal to marry him.

5.  During her employment in Hong Kong, the Applicant in 1999 formed a relationship with a Nepalese man who was a local permanent resident, and in 2010 she became pregnant with his child and as a result her employment was terminated, and so she returned to Indonesia to stay in her sister’s place and subsequently gave birth to a son, but when Kusni found out about it, he indicated to her that he still wished to marry her and continued to put pressure on her to marry him and made all sorts of demands against her, and in order to avoid him, the Applicant in April 2013 returned to Hong Kong for further employment as a foreign domestic helper.

6.  In 2015 she again became pregnant with the child of her boyfriend in Hong Kong, and as a result her last employment contract was terminated in January 2016, but on this occasion she did not depart and instead overstayed, and after giving birth to a daughter in May 2016, she then surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 October 2016 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

7.  By a Notice of Decision dated 21 December 2016 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”).

8.  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 Kusni or his family members upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that after more than 20 years since her refusal to marry Kusni and departed Indonesia in 1995 that it is doubtful that Kusni would still have any interest in her after all these years, that it was in any event a private marriage dispute between them 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”) shows that there are government and non-government organizations to provide protection and assistance to single mothers and illegitimate children in Indonesia as well as reasonable internal relocation alternatives within Indonesia with a large population of 255 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move 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 Kusni to locate her.

9.  On 28 December 2016 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 30 October 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 1 December 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found significant inconsistencies gaps and contradictions in the Applicant’s evidence as to her alleged threats from Kusni that it doubted her claim of ever being engaged to Kusni or had been prearranged to marry him or had ever been threatened by Kusni or his family as alleged that it concluded that the Applicant will not face any real risk of any harm at the hands of anyone in her home village that she can safely return to her home in Indonesia, while reliable COI shows that protection and assistance would be available to her as an unwed mother with illegitimate children that she will not face any risk of discrimination or persecution as such that her claim for non-refoulement protection failed on all applicable grounds.   

11.  On 26 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of the decision and other documents in her appeal bundle before the Board but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

12.  By then the Applicant was also seriously out of time with her 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 considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for her to file her Form 86 fell on 1 March 2018, the Applicant was therefore more than 6 1/2 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 HKCA 393. 

14.  In the Applicant’s case, a delay of more than 6 ½ months must be considered as very substantial and excessive, for which she did not provide any explanation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her serious delay.

15.  As for the merits, if any, of her intended application, as noted above the Applicant did not in her Form or supporting affirmation put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality 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 merits in her application either.    

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 Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her 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 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 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