Nikmaturodiyah v. Torture Claims Appeal Board

HCAL 782/2018

[2020] HKCFI 1036

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 782 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 8 December 2017 refused; and

2.  the Application for 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, 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 41-year-old national of Indonesia who last arrived in Hong Kong on 5 September 2011 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 March 2014 or within 14 days of its early termination.  Her contract was prematurely terminated on 9 December 2013 when she was arrested by police for drug trafficking for which she was subsequently convicted on 18 March 2014 and was sentenced to 22 months’ imprisonment. Upon discharge from prison she was referred to the Immigration Department for deportation when she then raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her family members for bringing disgrace to the family and/or by her creditor for failing to repay her loan.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Mbodo, Malang, East Java, Indonesia.  After leaving school she married her husband and gave birth to a son.  In 1995 her marriage ended in divorce and she moved with her son to reside with her mother and sister in her home village.

3.In 2003 she started working in Hong Kong as a foreign domestic helper and remitted her monthly salary to her mother in Indonesia for looking after her son.

4.To subsidize her income she in 2013 borrowed HK$35,000 from a finance company in Hong Kong repayable by monthly instalment of HK$2,925 for 15 months.

5.To help make the monthly loan repayments the Applicant however turned to trafficking illegal drugs in Hong Kong for which she was subsequently arrested by police on 8 December 2013.  As a result her employment contract was terminated and she was subsequently convicted by the court and sentenced to prison for 22 months.

6.Whilst in prison she was told by her friends that her family members were very upset that she had brought disgrace to the family and had threatened to kill her if she was to return to Indonesia, and as she was unable to repay her loan and was being chased after by her creditor, after she was discharged from prison and before she was deported by the Immigration Department, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 8 September 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by her family members or by her creditor upon her return to Indonesia due to the absence of any past ill-treatment from any of them, that there was no reliable evidence of any of such threats other than some hearsay information and her own speculation, that in the absence of 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 255 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Indonesia away from her home district in large cities such as Jakarta, Bali or Surabaya where it would be difficult if not impossible for her family members or creditor to locate her.

9.By a Notice of Further Decision dated 1 August 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 ClaimsAppeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 19 September 2016, and for which she attended an oral hearing on 20 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 8 December 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found no reliable evidence that her family members or her creditor had ever threatened to harm or kill the Applicant upon her return to Indonesia or that any such threats or ill-treatment had attained the minimum severity under any of the applicable risks, that even accepting that she still owed her creditor money, given the small amount involved it is doubtful that the finance company in Hong Kong would be willing to use its resources to locate and pursue her in Indonesia, and that in any event theywere either family dispute or private personal monetary dispute that state or police protection would be available to the Applicant should any risk of such threats materialize.

12.On 4 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)     procedural unfairness in that the Board had unlawfully fettered its discretion in refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)     procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)     procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense, or are the result of procedural errors or unfairness;

(4)     procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)     procedural unfairness in providing her with the hearing bundle late and with the majority of the documents in English without translation thereby giving her insufficient time to prepare for her appeal hearing before the Board; and

(6)     that the Board significantly relied on source of news not officially recognized or was simply hearsay or outdated resulting in groundless speculation that it would be safe for her to return to her country of origin.  

13.By then the Applicant was however 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 three-month period for the Applicant to file her Form 86 fell on 8 March 2018, she was therefore about two 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: see Re Thomas Lai [2014]6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of two months must be considered as significant or substantial, for which she explained at the hearing that she did not receive the Board’s decision until much later when she was informed by her immigration officer, and that she was not aware of the rule requiring that such application be made within three months.

16.In the absence of any further details or documentary evidence from the Applicant,I do not accept her explanation that she did not receive the Board’s decision within a reasonable time, and as ignorance of the law can never be accepted as a valid defense,I do not find any good reason for the Applicant’s delay.

17.As for the merits of her intended application, the proposed grounds of the Applicant are mostly just broad and vague assertions 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator fetter his discretion or act in a procedurally unfair manner, or how was the Board’s decision unreasonable or irrational in the public law sense, or what COI relied on by the Board were not officially recognized or were hearsay or outdated.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

18.The only complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

19.Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant asthey had earlier all already been made available to her when she still had legal representation,whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

20.In the absence of any error of law or procedural unfairness in the Board’s decision  being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board, and as it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, I agree that there is simply no justification to afford her with non- refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21.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.

22.For these reasons I am not satisfied that there is any realistic prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 4^th day of June 2020.

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