APLONIA AKOIT v. TORTURE CLAIMS APPEAL BOARD

HCAL 1247/2019

[2023] HKCFI 1285

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1247 OF 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of documents only;          or
	consideration of documents and oral submissions by 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 21 March 2018 refused; and

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

Observations for the Applicant:

1.  The Applicant is a 49-year-old national of Indonesia who last arrived in Hong Kong on 10 August 2007 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 10 August 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 December 2008, she did not depart and instead overstayed, and was arrested by police almost 6 years later on 18 August 2014. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a fellow villager Emi over some monetary dispute between the 2 of them. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Bonipoi, Kupang Sub-district, Kupang Regency, East Nusa Tenggara Province, Indonesia. After leaving school she worked as a salesgirl in a drug store in her home village.

3.  In about 1997 a fellow villager and a childhood friend Emi who owned various land and properties in the home village which she asked the Applicant to help her to sell and that they would share the proceeds between them, and which the Applicant was able to do so, but for which Emi refused to pay the Applicant her share of the proceeds which then led to serious quarrels between them, and after several confrontations between them during which Emi threatened the Applicant, and on the last occasion the Applicant was attacked by Emi and her followers with knives that she suffered serious injuries and was hospitalized for one week.

4.  Upon her discharge form hospital, the Applicant fled from her home to hide in her uncle’s place in East Nusa Tenggara Province, and to avoid being located by Emi, she departed Indonesia in 1999 to come to Hong Kong to work as a foreign domestic helper, but when her last employment was terminated in 2008, she was afraid to return to her home country and therefore overstayed in Hong Kong, and upon her subsequent arrest by police almost 6 years later in 2014, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 1 August 2016 the Director of Immigration (“Director”) rejected the Applicant’s 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 of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Emi upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her, that there is no evidence of any real intention of Emi to seriously harm or kill her, that in any event it was a private monetary dispute between the 2 of 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”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 million people spread across a vast territory with more than 17,000 islands that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities or one of the many islands where it would be difficult if not impossible for Emi to locate her.

7.  Meanwhile on 14 June 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to her 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”), and in the absence of any response from her, the Director by a Notice of Further Decision 4 October 2017 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Indonesia.

8.  By then the Applicant was 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 11 August 2016, and for which she attended an oral hearing on 18 January 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 March 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence on key aspects of her claim that it doubted the credibility of her claim of fear of harm from Emi for failing to return to Indonesia and for overstaying in Hong Kong, which was further undermined by her failure to raise her claim when she overstayed until almost 6 years later and only after her arrest by police, while her claim of fear of being arrested and prosecuted by the police over some false charges made by Emi against her is unsupported by any reliable evidence and the fact that she had been able to go in and out of the country without any difficulty, and that even if her alleged claim of fear from Emi is true that it was a private monetary dispute between the two of them 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 for her to move safely to other part of the country away from her home district without any risk of being located by Emi that her claim for non-refoulement protection failed on all the applicable grounds.

10.  On 9 May 2019 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 or in her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  By then the Applicant was also 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 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.

12.  As the last day of the 3 month-period for her to file her Form 86 fell on 21 June 2018, the Applicant was therefore more than 10 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.

13.  In the Applicant’s case, a delay of more than 10 months must be considered as very substantial and inordinate, for which she did not provide any explanation in either her Form or her affirmation, and as the record show that the Board’s decision was sent on the same day to her then reported address without being returned through undelivered post, 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, as noted above the Applicant has also failed to put forward any proper ground for her intended challenge. As such 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 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 fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  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 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