HARIATI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 901/2017

[2018] HKCFI 1693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 901 of 2017

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 refused.

Observations for the Applicant:

1.  The applicant is a 36-year-old national of Indonesia who last arrived in Hong Kong on 18 January 2009 with permission to remain and to work as a domestic helper until the expiration of her employment contract on 3 September 2011 or within two weeks of its early termination.  When her contract was prematurely terminated on 11 June 2011 she did not depart within two weeks and instead overstayed until 17 July 2014 when she surrendered to the Immigration Department and lodged her non-refoulement claim on 4 September 2014 on the basis that if she returned to Indonesia she would be harmed or killed by her father’s creditor.  She has since been released on recognizance pending determination of her claim.

2.  The applicant was born and raised in Donomulyo, Malang, East Java, Indonesia where her parents and sisters still live.  After leaving school she worked as a domestic helper in Hong Kong between 2001 and 2011.

3.  In 2008 her father borrowed 200 – 250 million Indonesian Rupiah from a loan shark Mr T in order to run his business, but later when his business failed and when he became bankrupted, and as he was unable to repay his loan to Mr T, he asked the applicant who was then visiting her family to marry Mr T in lieu of his loan repayment, and when the applicant refused as she did not know anything about Mr T nor even met him, Mr T threatened to kill her and her family unless his loan was paid or that she married him.  As a result the applicant went into hiding at her friend’s place in Central Java but never reported the matter to the police before returning to work in Hong Kong.

4.  When the applicant was finishing her employment in Hong Kong in 2011 and planned to return to Indonesia to marry her then boyfriend, her father urged her to marry Mr T instead and when she refused, Mr T threatened to kill her if and when she returned to Indonesia.  Again the matter was never reported to the police but as the applicant was afraid to return to Indonesia after her last employment contract was terminated, she overstayed in Hong Kong and subsequently lodged her non-refoulement claim, for which she completed her Non-refoulement Claim Form on 17 April 2015 with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 21 January 2016 the Director of Immigration (“yhe 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found no evidence other than the applicant’s bare assertion based primarily on hearsay that Mr T intended to kill her for refusing to marry him when they had never even met, that the dispute was a private and personal matter between Mr T and her father and hence in the absence of evidence of any involvement of the state or police in Mr T’s threats that state protection would be available to the applicant if resorted to, and that 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 of more than 1.9 million square kilometers that it would not be unduly harsh for the applicant to move to areas away from her home district such as Jakarta where she can live and work free of any threats from Mr T.

7.  By a Notice of Further Decision dated 21 June 2017 the Director again rejected the applicant’s 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”) after considering further documents submitted by her including copies of marriage certificate of her subsequent marriage to her husband in Hong Kong and of the birth of her daughter which the Director found to be irrelevant to BOR 2 risk.

8.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 3 February 2016, and for which she attended an oral hearing on 29 July 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 3 April 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Broad found even on the applicant’s own case that there is no direct evidence that she would be killed by Mr T other than her own words based on hearsay from her father who still lives safely at home in Indonesia despite having not repaid his loan to Mr T for more than 10 years, or that Mr T would still have any adverse interest in her after all these years, and that state protection and internal relocation alternatives are available to the applicant if refouled to Indonesia.

10.  On 17 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, of which she was out of time by some 4½ months but for which she has not made any application for extension of time, but she did in her supporting affirmation of her leave application state the following reason for her delay:

“ I am late for filing for leave for judicial review because I did not receive my decision from Torture Claims Appeal Board on 3 April 2017 in my address. Then I had been sentenced on 5 May 2017 to Low Wu Prison and released from prison on 9 June 2017. After I collect my decision from North Point Torture Claims Appeal Board Office in person, I had changed my residential address, and I am not aware from my decision that my appeal was rejected. So this is the reason I am late for filing for leave for judicial review.”

11.  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, which means not later than 3 July 2017 in the applicant’s case, unless the court considers that there is good reason for extending the period within which the application shall be made. 

12.  Here a delay of 4½ months certainly appears to me significant, and even if what she said in her affirmation is true about her being in prison and changing address, even on her own admission she did receive the Board’s decision after her release from prison on 9 June 2017, and it seems to me that she would still have had more than 3 weeks to file her leave application instead of waited more than 4 months to do so, and while the merits of her intended challenge can be a significant matter to be taken into account to see whether there is good reason for extending time, as per G Lam J in Re Thomas Lai [2014] 6 HKC 1, as will be apparent below, an examination of those grounds put forward by the applicant for her intended challenge show that there is none.

13.  Her grounds are set out in her supporting affirmation of the same date of her leave application as follows:

(1)     procedural impropriety for failing to provide sufficient reasons that she would not be at risk to torture upon refoulement as she has married a husband in Hong Kong of a different religion which her family is against;

(2)     procedural impropriety for failing to conduct sufficient inquiry into or cherry picking of COI in the consideration of her claim;

(3)     error or misdirection in law for failing to apply relevant COI in the assessment of effectiveness of protection for its citizens in Indonesia; and

(4)     error or misdirection in law for failing to conduct independent assessment of state acquiescence in the consideration of her claim.  

14.  These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Board had erred in their decisions.  

15.  Furthermore, given the absence of any evidence involving the state or the police in Mr T’s threats, I fail to see why it was necessary or relevant for the concept of state acquiescence to be considered in the applicant’s claim.

16.  As for her alleged fear of harm from her family against her marriage to her present husband in Hong Kong, notwithstanding the fact that she already disclosed such relationship and the birth of her daughter to both the Director and the Board during the process of her claim, she never referred to any threats from her family nor raised it as part of her claim, which if true is entirely a new claim never before raised in the process either before the Director or the Board, and therefore there is no basis at all to criticize either of them for failing to consider this claim in their decision, as there was never any evidence even from her of such threats during the process of her claim based solely on the threats from Mr T for her refusal to marry him.

17.  Having also 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 applicant’s claim.

18.  In the premises I do not find any good reason to extend time for the applicant’s leave application, nor am I satisfied that there is any prospect of success in her intended application for judicial review, I accordingly refuse 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