Maya Setianingrum Jumbadi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 714/2017 on BabelCite. This High Court CFI judgment.
1. The applicant is an Indonesian national who came to Hong Kong as a foreign domestic helper on 19 November 2009 and was permitted to remain until 19 November 2011 or two weeks after termination of contract, whichever was earlier. On 9 January 2010 her employment contract was prematurely terminated. On 15 January 2010 and 6 February 2010 the applicant applied for an extension of stay but overstayed since 17 March 2010. On 22 February 2011 the applicant was arrested by the police. She was co
|
HCAL714/2017 [2018] HKCFI 1697 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 714 of 2017 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Woodcock:
Observations for the Applicant (Order by Deputy High Court Judge Woodcock): 1.The applicant is an Indonesian national who came to Hong Kong as a foreign domestic helper on 19 November 2009 and was permitted to remain until 19 November 2011 or two weeks after termination of contract, whichever was earlier. On 9 January 2010 her employment contract was prematurely terminated. On 15 January 2010 and 6 February 2010 the applicant applied for an extension of stay but overstayed since 17 March 2010. On 22 February 2011 the applicant was arrested by the police. She was convicted of an immigration offence and sentenced to a term of imprisonment but it was suspended. After her arrest the applicant lodged a torture claim. 2.The Director of Immigration (“the Director”) rejected the applicant’s torture claim on 8 February 2013. She did not appeal that decision and then failed to report to the Immigration Department as required. She was arrested by an Immigration officer on 16 July 2014 for working illegally, convicted of that offence and sentenced to 15 months’ imprisonment. The applicant then lodged a non-refoulement claim on 4 September 2014. The Director rejected her BOR 3 risk and persecution risk on 21 August 2015. The applicant did lodge an appeal/petition with the Torture Claims Appeal Board (“TCAB”) and an oral appeal hearing was conducted on 28 June 2016 and her appeal was dismissed on 27 February 2017. The applicant has filed a notice of application for leave to apply for judicial review dated 4 October 2017 and requested an oral hearing; she appeared in person on 9 March 2018 because her legal aid application was refused. 3.In her application she proposes both the Director and the TCAB as respondents and seeks relief against the Director’s decision dated 21 August 2015 and the TCAB decision dated 27 February 2017. The applicant’s BOR 2 risk claim 4.The Director has assessed the applicant’s BOR 2 risk claim and rejected it; she has not appealed it. It is not a decision in respect of which relief is sought in this application but I will nonetheless set out its history to ensure a clear picture. The Director wrote to the applicant on 31 March 2017 (after the disposal of her TCAB appeal) and informed her they would be considering whether she had any claim under a BOR 2 risk and invited her to submit any information to add to her evidence already submitted. The Director gave her 14 days to comply. By a further letter dated 24 April 2017 the Director informed the applicant that they had not received a reply from the applicant nor any further information/evidence and had, after consideration found she had not been able to invoke protection under BOR 2. 5.In that letter dated 24 April 2017 the Director informs the applicant that her appeal/petition to the TCAB against the Director’s decision dated 21 August 2015 had been determined and rejected on 27 February 2017 and if she intended to appeal this further decision she had to lodge a separate and further appeal/petition to the TCAB within 14 days from the date of that notice. An extension of time to apply for leave 6.The applicant’s notice of application is dated 4 October 2017 therefore, she has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision according to Order 53 Rule 4. An application should have been made within three months of the TCAB’s determination which was 27 February 2017. This application is four months and one week late. There are no reasons given in the applicant’s Form 86 as required and in the applicant’s supporting affirmation she does not give an explanation but only states that she is late to file this application because she did not receive the TCAB decision by post. 7.During the oral hearing she confirms that the reason she did not receive the TCAB decision by post was because she moved home, changed her address and did not inform the TCAB. She admitted it was her mistake that, despite knowing of their pending decision she did not keep the TCAB informed of her home address. It was an Immigration officer who informed her that her case had concluded, meaning her appeal had been decided. When she learned of this, she went to the TCAB office in person and obtained a copy of the decision. It is entirely her responsibility to update the TCAB office and Immigration Department of any change of address therefore, she has no reasonable excuse for her delay. 8.I have considered the legal principles for granting an extension of time for judicial review. The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance. 9.The delay is not insignificant and there is no good reason for extending time. This is because her explanation for the delay is weak and the merits of the substantive application after a perusal of the papers are also weak. Moreover, the application does not raise any questions of general public importance. The extension of time sought is an abuse of process and ought to be refused. Delay alone is enough to dispose of this application. However, if I am wrong, I proceed to consider the merits. Observations 10.The basis of her claim was that if she were to return to Indonesia she would be harmed or killed by her husband and also a moneylender. Both the Director and the adjudicator set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here. 11.The applicant married in 1997 and had a daughter in 1998 before going to work in Hong Kong in August 2000 for the first time. By 1998 her marriage had turned sour, her husband had become a drunk, as well as abusive and violent towards her. He hit her on numerous occasions and the most serious assaults were a cut lip due to a punch on one occasion and a bloodshot swollen eye on another occasion. The applicant did not tell her parents or the police of his behaviour but chose to work in Hong Kong to avoid him and earn money to support the family. The last time she saw him was when she left for Hong Kong that year. 12.He did refuse to divorce her over the phone and threatened to kill the applicant if she took their daughter away. In 2002 the applicant heard a rumour that her husband had remarried so she returned home for three months but could not find her daughter nor her husband. She returned to Hong Kong and sent money to her parents to have a house built next door to theirs for her to live in eventually. In 2004 she found out that her husband had married her own sister. In 2005 she finished paying for her house and it was completed but in 2007 she found out that her husband, her daughter, her sister and their children were living in it and her parents refused to expel them. 13.To add insult to injury, in 2012 she found out that her husband had forged her signature and borrowed the equivalent of about HK$36,000 from a sadistic loan shark in her name and not repaid him. The applicant was worried that if she returned to Indonesia the loan shark would kill her for the unpaid debt. 14.The Director’s decision dated 21 August 2015 considered the applicant’s BOR 3 risk and her persecution risk only because her torture risk had been dealt with in 2013. The Director took into account the applicant has never met the loan shark, been physically hurt or even directly threatened by him. The applicant does not even know his name. It was hearsay evidence her husband borrowed money from a loan shark by forging her name. As far as her husband was concerned, the injuries she sustained were minor and did not attain a minimum level of severity required to be considered torture or CIDTP. 15.The Director also considered relevant, up-to-date and objective Country of Origin information (“COI”) and found available State protection for the applicant if she was at any risk if refouled and he found internal relocation permissible and a viable option without undue hardship. He found the applicant could not invoke the protection of BOR 3 because she could not prove she would face ill-treatment that would attain a minimum level of severity and would face a genuine and substantial risk of being subjected to such ill-treatment. She could also not prove a persecution risk on account of race, religion, nationality, membership of a particular social group or political opinion; her disputes were of a personal and private nature. Therefore, she could not establish a persecution risk. 16.The adjudicator conducted an oral hearing and treated it as a rehearing. The applicant elected not to answer any questions or give evidence. The adjudicator came to the same conclusion as the Director and found the applicant was unsuccessful and unable to invoke the protection of BOR 3. She was also unable to prove a persecution risk for the purpose of a non-refoulement protection claim. The adjudicator confirmed the Director’s decision. Leave to apply for judicial review 17.I have to consider with rigourous examination and anxious scrutiny the grounds of this application. I find the Director’s and adjudicator’s decision is to be without fault. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated. 18.The first ground is a failure of the TCAB to properly identify the applicant’s discrepancies and allow her an opportunity to explain and clarify them. There is no merit in this ground because the adjudicator did not dismiss the claim on the basis that the applicant is not credible although he does go on at the end of his decision to discuss matters of credibility but says they are discussed independently of his decision. 19.The second ground and fourth ground against both the decision-makers submits they failed to conduct sufficient enquiry into relevant COI, analyse it objectively and they are accused of cherry picking information. The conclusion that State protection was available was not substantiated. However, in this ground there are no particulars provided to support it. A reading of both decisions show these criticisms are not justified. There is no merit in this ground. 20.The third ground is a failure to consider the applicant’s psychological harm. This was not raised before either the Director or the adjudicator as part of the applicant’s case therefore, there is no merit in this ground. 21.The last ground against the Director I cannot decipher but appears to be a repetition by the applicant that despite the Director’s finding, she will face a real risk if she returns to Indonesia. 22.I do not find any ground that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable. If I was wrong in refusing an extension of time to apply for judicial review, in my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review. Dated 27th day of July 2018
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 |