TITIN FATMAWATI v. TORTURE CLAIMS APPEAL BOARD

HCAL 3343/2019

[2023] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3343 OF 2019

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 / 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 6 June 2019 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 29 December 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 29 December 2012 or within 14 days of its early termination, but when it was prematurely terminated on 2 August 2012, she did not depart and instead overstayed, and was arrested by police on 23 September 2012. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her parents for marrying a non-Muslim husband in Hong Kong and for refusing to help them to repay their debts and/or by their creditor, and after her torture claim was rejected, she then sought non-refoulement protection on the same bases.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised as a Muslim in Banyuwangi, Jawa Timur, Indonesia.  After leaving school she got married and raised a family with a son in her home district.

3.  In 2006 she separated with her husband whom she later divorced, and in order to support her son whom she left in the care of her parents, she went to Malaysia to work as a domestic servant and remitted money to her parents in Indonesia for her son’s support.

4.  In August 2009 the Applicant came to Hong Kong to work as a foreign domestic helper, during which she met and formed a relationship with a local Chinese resident.

5.  In 2012 when she informed her parents of her relationship with the Chinese resident and of her intention to marry him, her parents objected to her relationship with or marriage to a non-Muslim, and that they had intended instead to marry her to their creditor in settlement of their debts, and when the Applicant refused, her parents threatened to kill her when she returned to Indonesia, and as a result the Applicant subsequently cut off all contacts with her parents.

6.  However, after her last employment was terminated on 2 August 2012, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 29 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While released on recognizance pending the determination of her claim, the Applicant married her Chinese boyfriend on 26 June 2017, and with whom she has given birth to a son.               

8.  By a Notice of Decision dated 28 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

9.  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 her parents or their creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her parents to seriously harm or kill her other than to put pressure on her to help them to repay their debts, that the creditor did not know the Applicant at all and that there is no evidence that he has any adverse interest in her, that in any event her problems with her parents or their creditor were private family or monetary disputes 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 262 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 as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her parents or their creditor to locate her.

10.  On 12 December 2018 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 27 March 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 6 June 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her parents or their creditor that caused her to overstay in Hong Kong to seek non-refoulement protection, that it is not accepted that her parents are fanatic Muslims who had made any threats to harm or kill their daughter in connection with her relationship with a non-Muslim or for any reason or that their creditor has had any adverse interest in the Applicant at all, and that in any event these were private family disputes between 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 that her claim for non-refoulement protection failed on all applicable grounds.    

12.  On 11 November 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 in which she just repeated her claim of fear of harm from her parents over her marriage to a non-Muslim but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

13.  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.

14.  As the last day of the 3 month-period for her to file her Form 86 fell on 6 September 2019, the Applicant was therefore more than 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 HKC 393.

15.  In the Applicant’s case, a delay of more than 2 months must be considered as very substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 6 June 2019 to her last reported address which is the same as stated in her present application without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.    

16.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forth 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 intended application either.

17.  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.

18.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 56 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 reasonably arguable basis to challenge the finding of the Board.  

19.  The fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real 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.                

20.  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.

21.  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