Jumiati and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 478/2018

[2019] HKCFI 125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 478 of 2018

BETWEEN

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 in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  an extension of time for the application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 11 May 2017 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 35-year-old national of Indonesia who last arrived in Hong Kong on 27 January 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 December 2014 or within two weeks of its early termination.  On 29 December 2014 her employment was extended to 19 October 2015, but when it was prematurely terminated on 29 August 2015, she did not depart and instead overstayed until 7 October 2015 when she surrendered to the Immigration Department, and after giving birth to her son the 2^nd applicant (“A2”) in Hong Kong, she subsequently lodged a non-refoulement claim for both of them on the basis that if they returned to Indonesia they would be harmed or killed by her father and brother for bringing shame to the family for giving birth to a child out of wedlock.  The applicants have since been released on recognizance pending the determination of their claim. 

2.A1 was born and raised in Desa Sendang Kulon, Kecamatan Kangkung, Kendal City, Central Java Province, Indonesia.  After leaving school she first worked as a babysitter in Jakarta and later took up employment as a foreign domestic helper in Malaysia until November 2008 when she moved to work in Hong Kong.

3.In 2014 she formed a relationship with a Pakistani man who was a Hong Kong resident, but when she became pregnant with A2 in May 2015, the man ended their relationship and ceased all contact with her, and when she subsequently informed her father and brother of her plight in Hong Kong, they threatened to kill both her and her son for bringing shame to the family if she were to return to Indonesia, and since then they had cut off all their contact with her.

4.Hence when her employment contract was terminated in August 2015, A1 overstayed in Hong Kong, and after giving birth to A2 on 16 February 2016, she lodged a non-refoulement claim for both of them, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 October 2016 for both and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 28 November 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 their absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) 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”).

6.In his decision the Director took into account of all the relevant circumstances of the applicants’ claim and assessed the level of risk of harm from A1’s father or brother upon return to Indonesia as low due to the absence of past ill-treatment from them, that the only threats from them were made verbally in the heat of the moment and that the cutting off ofall contact with A1 show that they had no real intention to harm or kill the applicants, that in the absence of any official involvement that 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 258 million people spread across a vast territory of more than 1.9 million square kilometers 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 in large cities such as Jakarta or Bandung where it would be difficult if not impossible for her father or brother to locate them.

7.The applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 6 March 2017 before the Board during which A1 gave evidence and answered questions put to her by the adjudicator for the Board.  On 11 May 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted that the father and brother of A1 may have threatened to harm or kill her and/or A2 if they were to return to their home in Indonesia, but found such threats may have been uttered in the heat of the moment with no real intention to actually harm or kill them, and assessed in the circumstances of the applicants’ case that there is not a real chance of risk to them under any of the applicable grounds, and that even if such risk does exit from A1’s father or brother or even from any villagers in her home area that A1 would have no difficulties in relocating with A2 to other area in Indonesia and in re-establishing herself in a large city such as Jakarta where there would be no risk of them being located by A1’s father or brother.   

9.On 23 March 2018 A1 filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  that she was not given any legal assistance in her appeal to the Board which was unfair to her as a self-represented litigant and a single mother from Indonesia who does not speak the local language or read or write English;

(2)  that she was just given a hearing bundle for her appeal hearing before the Board when the contents of the documents in the bundle were never read or translated to her in the appeal process;

(3)  that after the dismissal of her appeal, she was never explained or interpreted of the Board’s decision; and

(4)  that neither the Director nor the Board had made any or proper enquiry into the relevant COI to ascertain whether she and her son would receive proper assistance or protection in Indonesia from the threats of her father and brother.   

10.At the oral hearing for her application now before me, A1 clarified that her application for judicial review was also made on behalf of A2 whose name was initially included in her Form 86 as the second applicant but was somehow crossed out by her lawyer for reason not known to her.  As it was clear in her affirmation that it was made also on behalf of her son, I allowed her to include her son in her application as A2 at the hearing.

11.However, by then the applicants were more than seven months late with their 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.

12.As the Board’s decision was made on 11 May 2017, the last date for the applicants to make their application fell on 11 August 2017, and hence when they filed their Form 86 on 23 March 2018 they were more than seven months out of the three-month period under the rule, for which A1’s explanation was simply that she was not aware of the rule and that it took time for her to apply for legal aid and the subsequent appeal against the rejection of legal aid and hence the delay.

13.While ignorance of the law or rules can never be an acceptable explanation, and although it is true that the applicants’ legal aid application was indeed refused in December 2017 and their subsequent appeal was rejected in March 2018, it is unclear when exactly did they apply for legal aid after the Board’s decision of 11 May 2017, as it appears to me that if the applicants had made their application promptly soon after that it had taken unreasonably long for the Legal Aid Department to process their application, and in any event I do not find a delay of more than seven months to be excusable, as the applicants did not need to wait for the outcome of their legal aid application to lodge their application for judicial review which they were eventually able to do so without legal aid.

14.Be that as it may, it would be necessary for me to proceed to see if there is still in good reason in the circumstances to extend time, and the most significant matter would be to consider the merits, if any, of their intended application: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration & anor CACV 63/2015.

15.For the applicants’ complaint under ground (1) of not having legal assistance in their appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16.The applicants already had the benefit of legal representation in presenting their case to the Director, and that A1 was able to testify and make representation at the appeal hearing before the Board and to answer questions put to her by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

17.As for their complaint under ground (2) of not being explained or translated the hearing bundle of documents all of which were in English, clearly A1 should be well familiar with most of the documents including the NCF which was completed on her instructions to her lawyer from DLS, as well as the record of screening interviews and the Director’s decision which had earlier all been made available to A1 when she still had legal representation, whilst she never raised the issue with the adjudicator at her oral hearing before the Board.  In the premises I do not find any merit in this complaint of the applicants either.

18.Regarding her complaint of not being explained of the Board’s decision, clearly she has had access to legal assistance in her present application to challenge that decision, and in any event that per se cannot form any basis for her application.  

19.As for their last ground, it is also clear that both the Director (in paragraphs 24 – 26) and the Board (in paragraph 45) of their decisions did refer to and consider the relevant COI regarding various assistances, reliefs and protection available to unwed mothers and illegitimate children in Indonesia, and hence there is simply no basis for the applicants to make this complaint. 

20.Furthermore, the fact that it has been established by both the Director and the Board in their decisions 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.

21.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.

22.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 to extend time for the late filing of their application, which is accordingly hereby dismissed.

Dated the 11^th day of January 2019.

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