Supriatik v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 538/2018

[2020] HKCFI 1681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 538 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 30 March 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 15 June 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 November 2012 or within 14 days of its early termination, but when her contract was prematurely terminated on 15 June 2012, she did not depart and instead overstayed and was arrested by police on 10 September 2013.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or his creditor for failing to give him money to repay his loan, and that she was also fearful of eruption of the volcano in her home area.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Blitar, East Java, Indonesia.  After leaving school she married her husband, but as he was frequently out of job, the Applicant in 1998 went to work as a foreign domestic helper in Saudi Arabia for 2 years before returning home in Indonesia.

3.In about 2001 her husband borrowed a loan from the local money-lender in the village, but later when he was unable to repay the loan, the money-lender would come to their home and threatened to confiscate their house if the loan was not repaid soon.

4.In order to assist her husband to pay off his loan, the Applicant therefore came to Hong Kong in 2002 to work as a foreign domestic helper by remitting most of her salary to her husband every month, but he would keep asking for more money by making numerous threatening phone calls to her, and even after she had changed her phone number to avoid his threats and harassments, he would still manage to contact her and continued his threats, and it was in 2014 when she learnt that their house in Indonesia had been confiscated by his creditor because he failed to repay his loans, the Applicant became so upset that she had since ceased all further contact with her husband.     

5.Nevertheless, as she was still fearful of her husband’s threats, and also of the possibility of another violent explosion of the volcano in her home district, she did not depart Hong Kong after her last employment contract was terminated, and instead she overstayed until her subsequent arrest by the police when she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 20 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.By a Notice of Decision dated 22 May 2015 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 (the “Ordinance”) (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.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 husband or his creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that the threat of a volcano explosion can never be accepted as a valid reason for non-refoulement protection, that her problems with her husband and/or creditor were private domestic 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 200 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 part of Indonesia away from her home district where it would be difficult if not impossible for her husband or his creditor to locate her or where there would not be any risk of volcano explosion.

8.On 5 June 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 19 September 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 30 March 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found significant inconsistencies and contradictions in the Applicant’s evidence about her claim of threats from her husband which seriously undermined her credibility that it was not satisfied that she had suffered any ill-treatments at the hands of her husband in the past or that there is any real chance that she would suffer ill-treatment of any sorts if she is refouled to Indonesia that her claim for non-refoulement protection failed on all applicable grounds. 

10.On 19 April 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from her, by a Notice of Further Decision dated 12 May 2017 the Director again rejected her claim upon finding that she had failed to establish any BOR 2 risk.

11.The Applicant did not lodge any appeal to the Board against that Further Decision of the Director, but instead on 3 April 2018 she filed her Form 86 for leave to apply for judicial review of all three decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely attached copies of those decisions and other relevant documents but without providing any ground for her intended challenge.  Nor did she request any oral hearing for her application.

12.She was by then however also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 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.

13.As the last day of the three-month period for her to file her Form 86 fell on 30 June 2017 as regard the Board’s decision, the Applicant was therefore more than 9 months late with her application, whereas for the Director’s Further Decision of 12 May 2017 of which as noted above she never lodged an appeal to the Board, a process required under the existing two-tier Unified Screening Mechanism (“USM”) and stipulated by section 37ZR of the Ordinance, and hence she is not at this stage entitled to bring any application for judicial review, but even if I were wrong on this, she would still be similarly late by almost 7 months with her intended application.

14.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: 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 whether 7 or 9 months must be considered as very substantial or excessive, for which she did not provide any explanation, and as the record shows that all the decisions were sent to her last reported address and have never been returned through undelivered mail, and as her address had throughout the material times remained the same as stated in her Form 86, I am unable to find any reason for her such serious delay with her application.

16.As for the merit of her intended application, as noted above the Applicant did not put forward any ground to challenge any of the decisions, and in the absence of any error of law or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her to challenge their decisions.       

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.The fact is that 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

19.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.

20.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.

Dated the 3^rd day of August 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