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

HCAL 291/2021

[2024] HKCFI 3574

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 291 of 2021

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 Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Juartini (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 30 May 2018 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 November 2016 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 30 April 1981 in East Java, Indonesia. She received education up to junior high school and had worked as a domestic helper in Indonesia, Taiwan and Hong Kong.

The Claim

3.  The Applicant married her husband (“S”) in 1997. S has a brother (“L”). The Applicant claimed that S and L were gangsters and had close connection with the local police. The Applicant lived in the home of S and L after her marriage.

4.  In around late 2003, S asked the Applicant to have sex with L. S revealed that he had sex with L’s wife before and wanted the Applicant to return the favour. The Applicant refused.

5.  The Applicant claimed that in around late 2003, L touched the Applicant without her consent. The Applicant complained to S, but S replied that she should give in to L’s demand. In 2004, S asked the Applicant to have sex with L and when she refused, he threatened to kill her. He also threw a stone crusher at her, and this caused swelling and bruising to her shoulder.

6.  In early 2007, S and L pulled the Applicant to her bedroom and tried to strip her naked. The Applicant refused and they beat her. S threatened to kill her with a chopper if she did not stop struggling. When S went to the kitchen, the Applicant pushed L away and escaped. S threw the chopper at her, but she managed to duck. The Applicant fled to her parents’ home with her children and did not return to S’s home.

7.  The Applicant further claimed that S raped her sister when she was working in Taiwan. She claimed that she reported the rape to the local police, but they refused to take any action. The police informed S and L about the Applicant’s attempt to file a police report and they issued a death threat towards her. S also threatened to frame the Applicant with a false charge and have the police kill her as a fugitive.

8.  In around 2007, the Applicant came to Hong Kong to work as a foreign domestic helper with her own passport. She tried to divorce S in 2010 but S refused, claiming that he would kill the Applicant and her family if she applied for divorce. The Applicant did not dare to divorce him.

9.  The Applicant also claimed that S harmed her through black magic in around 2015.

10.  The Applicant claimed that she would be harmed or killed by S and L if she were returned to Indonesia.

Procedural history

11.  The Applicant last worked in Hong Kong in 2008 as a foreign domestic helper. Her contract was terminated prematurely on 17 December 2008 and she was required to leave Hong Kong on or before 31 December 2008. She overstayed and was arrested by the Immigration Department on 25 October 2010.

12.  The Applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT Claim”). The Director rejected the CAT Claim on 12 October 2012 and the Applicant applied to the Board to appeal against the aforesaid decision of the Director out of time. The application was refused by to the Board on 6 February 2013. The Applicant did not take the matter further. Thus, the CAT Claim was concluded.

13.  The Applicant was convicted of immigration offences in around 2015. On 21 March 2016, she lodged a non-refoulement claim (i.e. the Claim).

14.  The Director had considered the Claim on the remaining applicable grounds (other than the CAT Claim) under the United Screening Mechanism (“USM”), namely:

(a)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR; and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees.

15.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

16.  On 8 March 2021, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

17.  The Applicant also filed her supporting affirmation on 8 March 2021 (“Supporting Affirmation”).

18.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall 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.”

19.  The Board’s Decision was issued on 30 May 2018. As such, the Applicant had to file the Form 86 latest on 30 August 2018. The Form 86 was filed on 8 March 2021 and it was late.

20.  No application for extension of time to file the Form 86 was made by the Applicant but on 10 September 2024, the Applicant wrote a letter (“Letter”) apparently addressed to the Registrar of High Court and copied to the Director. On 19 September 2024, the Director brought the Letter to the attention of the court via fax. In the Letter, the Applicant said that she wanted to withdraw this intended judicial review application because she wanted to go back to her home country (“Withdrawal Application”).

21.  The Applicant was late for more than 2.5 years in filing the Form 86. This is a serious and substantial delay. As the Applicant has not applied for time extension to file the Form 86, no explanation has been provided by the Applicant for her late filing of the Form 86. There is no basis for the court to extend the time for the Applicant to file the Form 86 in this case. Solely on this ground, I shall dismiss this application of the Applicant for leave to apply for judicial review.

22.  For the sake of completeness, I also deal with the merits of the Applicant’s application below.

The DOI Decision

23.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that S or L intended to harm the Applicant. This was because S and L had the opportunities to inflict serious harm on her in the past but refrained from doing so. The Applicant was able to live under the same roof with S and L for three years while refusing their sexual requests. The Director found that there was only a remote possibility that S and L really intended to carry out the death threats towards her.

24.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indonesian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary and there were venues for seeking redress should police officers do not carry out their duties properly. There was no indication that any Indonesian authority was involved in the private dispute between the Applicant and S. Her family issue was by nature private and personal.

25.  The Director further found that internal relocation would be viable. If the Applicant moved to other parts of Indonesia, S and L would have great difficulty in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

26.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

27.  The Board found that part of the Claim was credible. It accepted that S and L made unwanted sexual requests to the Applicant and attacked her when she refused. It accepted that the Applicant had to go back to her parents’ home because of the treatment by S and L.

28.  The Board however found that the “harassment and assault from [S and L] came to an end” after the Applicant moved to live with her parents (§75 of the Board’s Decision). It found that the Applicant was left alone by S and L after she moved out. The Board found that there was not a real risk that the Applicant would be targeted for harm by S or L, or by anyone else and that she would not have to rely on police protection. The Board nevertheless found that overall there was a reasonable level of protection and support in Indonesia for woman at risk of domestic violence in the event the Applicant should require the same.

29.  The Board also rejected the Applicant’s contention that S and L had influence with the local police. It also found that there was no evidence to either prove or dismiss the alleged rape of the Applicant’s sister, but it held that the alleged rape had no implication on the Claim given its other findings. The Board was of the view that the so-called black magic attack in 2015 (i.e. coughing of blood) was due to the Applicant’s tuberculosis infection.

30.  The Board found that the Applicant could avoid the perceived harm from S or L by living away from them after she returned to Indonesia, such as staying in her parents’ home. Neither S nor L had in the past made any attempt to track the Applicant down when she moved to her parents’ home or when she was staying at an employment agency. It found that the Applicant would not face any harm if she moved away from S and L. Although the Board found that the Applicant did not face a real risk of harm if she returned to area where her parents lived, the Board nevertheless also found that the Applicant had other relocation options opened to her in Indonesia should she hold a subjective fear of harm in returning to her home area.

31.  The Board found that the Applicant had failed to establish her case on the remaining grounds (other than the CAT Claim) under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

32.  In a judicial review, the court does not step into the shoes of the decision makers.

33.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

34.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

35.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

36.  In the Supporting Affirmation, the Applicant only stated that: “I am not satisfied with the decision given by Torture Claim appeal board. I cant [sic] go back to my country at this moment because my life is not save in my own country. Please help me to stay here until my problem will be solved.”

37.  She produced no document to the Supporting Affirmation.

38.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

39.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the remaining applicable grounds (other than the CAT Claim) under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

40.  The Board found that the Applicant did not face a real risk of harm of any kind from S or L if she returned to live in Indonesia. She could avoid the perceived harm from S and L by living away from them after returning to Indonesia. Internal relocation was viable to the Applicant. Reasonable state protection would also be available, if needed.

41.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the remaining applicable grounds (other than the CAT Claim) under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

42.  The Applicant subsequently sought to withdraw this judicial review application by the Withdrawal Application stating that she wanted to go back to her home country as soon as possible.

43.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

44.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

45.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

46.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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