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

HCAL 15/2018

[2019] HKCFI 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 15 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 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 16 August 2017 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 applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 26 July 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 July 2015 or within two weeks of its early termination, but when her contract was prematurely terminated on 20 October 2013, she did not depart and instead overstayed until she was arrested by police on 9 November 2013.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her loans. 

2.The applicant was born in Blitar, Indonesia. After leaving school she got married and moved with her husband to Malang where she gave birth to three children, and in 2000 she began to working in the factories.

3.In 2003 her sister was suffering from cancer and the applicant started to borrow various loans from her neighbor, a vegetable seller in her home village, to meet her sister’s medical expenses for which she and her husband would make repayments plus interests by instalments.

4.In 2007 the applicant experienced difficulties keeping up with her repayments to her creditor who then threatened to kill her if she failed to repay her loans.  As a result she and her husband fled to Kalimantan where they stayed for three years without encountering any further threats from her creditor.

5.In 2010 when they returned to their home village in Malang, the creditor again pressed the applicant for repayment of her loans, for which she proposed to repay by instalments by coming to work in Hong Kong as a foreign domestic helper, which she did in July 2010 and made monthly remittances to her husband in Indonesia for her loans repayments.

6.However, when her employment contract was terminated in 2013, and when she failed to make any remittance to her husband in Indonesia, and when he left Malang to avoid her creditor who then again made death threats against her, the applicant therefore overstayed in Hong Kong and subsequently lodged her non-refoulement claim, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 13 July 2016 the Director of Immigration (“the 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 the Hong Kong Bill of Rights (“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”).

8.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from her creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from her creditor, that her problem with her creditor was a private money dispute that in the absence of 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 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 as an able-bodied adult with work experience to move to other areas away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

9.By a Notice of Further Decision dated 15 May 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement 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”).

10.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, the notice of which she filed on 26 July 2016, but for which she failed to attend her oral hearing scheduled on 25 May 2017 or to provide any explanation for her absence, and after several unsuccessful attempts to contact her by both letter and telephone calls the Board proceeded to deal with her appeal in her absence.  On 16 August 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board in the absence of oral evidence from the applicant assessed her claim only on the materials previously presented to the Director, and in giving her the benefit of the doubt that the centrepiece of her claim of death threats from her creditor can be given some credence, but that she was also able to live in another part of Indonesia for three years without any interaction with her creditor, and that there is insufficient evidence to establish if she were to return to Indonesia that now or in the reasonably foreseeable future that she would be at risk of experiencing any of the types of harm that would entitle her to protection in Hong Kong, and concluded in the circumstances that her claim fails on all applicable grounds.

12.On 3 January 2018 the applicant 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)  procedural impropriety in their failure to consider the concept of extended state acquiescence when considering her claim;

(2)  procedural impropriety in the Director’s failure to conduct sufficient enquiry into the relevant COI;

(3)  irrationality in failing to give reasons for assessment of the lack of BOR 3 risk and/or insufficient basis to support the conclusion of lack of BOR 3 risk;

(4)  error/misdirection in law in taking into account irrelevant considerations including the manner of her departure from Indonesia and failing to assess the relevant COI that she would not face risk upon her refoulement; and

(5)  error/misdirection in law in failing to take into account the consideration of psychological strain and threats to her and to her family.

13.The applicant was then late 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 for her to apply for leave to challenge the Board’s decision fell on 16 November 2017, the applicant’s Form 86 dated 3 January 2018 was therefore late by more than one and a half month, for which she explained in her affirmation that she did not receive any letter or notice of the hearing sent to her address or the telephone calls as her mobile phone was not working, which seem to me rather the reasons for her failing to attend the oral hearing for her appeal before the Board rather than for her application now before me.  As I see it, there is no explanation or reason from the applicant for the delay of her Form 86 by more than six weeks which cannot be said to be insignificant.

15.Further, at the oral hearing for her application before me the applicant asked for her application be postponed as she has married a Hong Kong resident who had submitted an application to the Immigration Department for her to remain in Hong Kong on dependency visa.  How she was able to get married in Hong Kong whilst still being married to her Indonesian husband is beyond me, but the matter was quickly put to rest after her Hong Kong husband attended court to confirm that his application for her dependency visa has just been rejected by the Immigration Department.

16.To consider whether there is good reason to extend time for the applicant’s late Form 86, the most crucial matter would be to see if there is any merit in her intended application by referring to her proposed grounds.  They are however all just broad and vague assertions of the applicant containing several key words and phrases but 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, or what relevancy is the concept of extended state acquiescence to her claim, or in what way did the adjudicator fail to take into account or make sufficient enquiry into the relevant COI, or how did the Director or the Board fail to give reasons for rejecting her claim under BOR 3 risk.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, nor can I find any merit or basis in any of them to be reasonably arguable for her intended challenge.

17.The fact is that it has been established by the Director, and agreed by the Board, that the risk of harm in the applicant’s claim is a localized one and a private and personal dispute from which state or police protection would be available to her, and that in any event 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.

18.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 applicant’s claim.

19.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 good reason to extend time, I accordingly refuse to grant leave for the applicant to file her Form 86 out of time and accordingly dismiss her application.

Dated the 18 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