SUYANTI AND ANOTHER v. ABU B. BIN WAHAB, ESQ, TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 216/2018

[2018] HKCFI 2816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 216 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 1st Applicant and the 2nd Applicant being absent in open court;

1.   an extension of time for the application for leave to apply for judicial review be refused; and

2.   leave to apply for judicial review dismissed.

It is further directed that:

3.   if the applicant intends 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, he/she 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 applicant 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 Applicant:

1.  The 1^st applicant (“A1”) is a 39-year-old national of Indonesia who last arrived in Hong Kong on 11 August 2008 with permission to work as a foreign domestic helper until the expiration of her then employment contract, but when her contract was prematurely terminated on 19 September 2009, she did not depart and instead overstayed in Hong Kong until 21 September 2012 when she was arrested by police shortly after giving birth to a daughter the 2^nd applicant (“A2”).  After they were referred to the Immigration Department for investigation, the applicants lodged a non-refoulement claim on the basis that if they returned to Indonesia they would be harmed or killed by A1’s father for the shame brought to her family for giving birth to a child out of wedlock. They have since been released on recognizance pending the determination of their claim.

2.  A1 was born in Desa Pucangro, Dusun Sidomukti, Gudo Sub-District, East Java, Indonesia where she lived with her widowed father and siblings.  She was single but gave birth to a son in 2002 out of wedlock. In 2003 she went to work as a domestic helper in Malaysia and left her son in the care of her father.

3.  In 2006 she came to Hong Kong to work as a foreign domestic helper, but when her second employment contract was terminated in September 2009 she did not depart and instead overstayed in Hong Kong because she had some money problem back home in Indonesia.  In 2011 she started a relation with a Nigerian man and became pregnant with A2, but when she informed her father in Indonesia of the same, her father was furious and threatened that he will kill her and her child if they were to return to Indonesia as it would bring shame to the family for A1 to give birth to a child out of wedlock, and so after giving birth to A2 on 20 September 2012 and after their subsequent arrest, A1 lodged a non-refoulement claim and on 22 April 2016 completed a Non-refoulement Claim Form (“NCF”) jointly for herself and A2 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 30 May 2016 the Director of Immigration (“the Director”) rejected the applicants’ claim on all the 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 (“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”).

5.  In his decision the Director took into account of all the relevant circumstances of the applicants’ claim and found no substantial grounds for believing that the applicants would be in danger of being harmed or killed by A1’s father upon return to Indonesia due to absence of any ill-treatment from him in the past, that in fact there were no threats or ill-treatment from him when A1 gave birth to her son also out of wedlock in 2002 in Indonesia when he in fact had been taking care of her son whilst A1 went to work in Malaysia and Hong Kong, that in any event state or police protection would be available to the applicants 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 that it would not be unduly harsh for A1 as an able-bodied adult with work experience to move with A2 to other areas away from her home district such as where it would be difficult if not impossible for  to locate them.

6.  By a Notice of Further Decision dated 17 January 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”).

7.  By then the applicants were already in the process of appealing to the Torture Claims Appeal Board (“The Board”) against the earlier decision of the Director, the notice of which they filed on 30 May 2016, and for which they attended an oral hearing on 2 February 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board when she also confirmed that the only basis for her non-refoulement claim is the threats from her father as those other money problems that she had had in Indonesia were no longer any issue.  On 31 March 2017 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found even on the applicants’ own case that A1’s father had never before shown any violent tendency towards A1 or uttered to her any harsh words before she gave birth to her son in 2002, that he had since been looking after her son whilst she was away working in Malaysia and Hong Kong, that any threats from him were made years ago and that A1 has since had no further contact from him that it is not even known whether he is still alive, and if so he would have been in his eighties and should not pose any threats to the applicants, and that in any event police protection and reasonable internal relocation alternatives within Indonesia away from A1’s home district would be available to them that their claims failed on all applicable grounds.

9.  On 12 February 2018 the applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, and in A1’s supporting affirmation of the same date she put forward the following grounds for their intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicants;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicants resulting in unfair procedure.  

10.  The applicants were of course by then way out of time 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.

11.  In considering whether to extend time the Court will 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 & Anor CACV 63/2015. 

12.  In the present case the Board’s decision was made on 31 March 2017, the last date for the applicants to make their application fell on 30 June 2017, and hence when the applicants filed their Form 86 on 12 February 2018 they were more than seven months late and must be regarded as very significant, for which A1 explained at the oral hearing that she was unaware of the rule and that it was only by February 2018 that she was able to find someone to help her to prepare the applications, which are of course not valid or acceptable explanations for such serious delay, and to determine whether there is good reason to extend time, I shall proceed to consider the only relevant matter in the circumstances of the applicants’ case, which is the merits, if any, of their intended application as reflected by those grounds put forward by them referred to above.

13.  These are however all just broad and vague assertions of the applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was their legal representation from their assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the applicants, and in the absence of which I am unable to see any merits or basis in any of those grounds.

14.  The only other complaint which the applicants appeared to have made with any elaboration was about the hearing bundle being provided to them only a few days before their appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given them insufficient time to prepare for their appeal.

15.  Even if it is true that the hearing bundle indeed came to them late as alleged, and the applicants never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including their NCF, records of their screening interviews and the Director’s decisions should be well familiar to the applicants as they had earlier all being already made available to them when they still had legal representation, whilst their NCF was completed on their own instructions with legal assistance, and that at their oral hearing A1 never raised any issue or requested the adjudicator for further time to enable them to better prepare for their appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the applicants in their appeal before the Board.

16.  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 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.

17.  In the premises and having proceeded to consider 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.

18.  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 and accordingly dismiss their 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