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

HCAL 508/2018

[2020] HKCFI 1774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 508 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 June 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Indonesia who last arrived in Hong Kong on 9 November 2007 to work as a foreign domestic helper, but when her last employment contract was prematurely terminated on 31 January 2010, she did not depart and instead overstayed and was arrested by police on 7 May 2012 for using a fake identity card for which she was subsequently convicted and imprisoned for 16 months.  Upon her release from prison and was referred to the Immigration Department for deportation, she raised a non‑refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her family members and/or the people of her home village for converting from a Muslim into a Christian.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in a Muslim family in Village Suruhan, Bandung Sub-District, Tulung Agung Regency, East Java Province, Indonesia.  After leaving school she first worked as a salesperson and later as a domestic helper in her home district before coming to Hong Kong in 2005 to work as a foreign domestic helper.

3.While in Hong Kong she was introduced by some friends to Christianity and was brought by them to attend religious services in a Catholic Church in Causeway Bay where she eventually converted to Catholicism.

4.In early 2007 she returned to Indonesia after receiving news from her family that her grandfather and father were sick, during which she disclosed to her family of her interest in Christianity but they did not take her seriously. Later when she finally told them of her conversion into Catholicism, they became furious and reprimanded her while her father also slapped her on the face, and on another occasion he pushed her so hard that she fell and hit her head on the floor and cut the corner of her left eye which required medical treatment.

5.After the incident the Applicant left home to stay with her uncle who was a local policeman, but on the next day after her uncle had learnt about her religious conversion, he drove her out of his home and threatened that he would shoot her if he saw her again.

6.Fearing for her life, the Applicant then fled to Surabaya, but later when she returned to her home village, she found her family had moved away, and when she ran into some of the local villagers, they became very hostile towards her and hurled insults and threw things at her over her religion conversion.  As a result, she felt that it was no longer safe to remain in Indonesia, she therefore travelled to Hong Kong on 9 November 2007 to again work as a foreign domestic helper.

7.However, when her last contract was prematurely terminated on 31 January 2010, she did not depart Hong Kong and instead overstayed, and after her subsequent arrest by the police for possession of a fake identity card and upon her release from prison, she raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form on 15 September 2015 with legal representation from the Duty Lawyer Service but failed to attend any of the scheduled screening interviews before the Immigration Department due to alleged medical reasons.

8.By a Notice of Decision dated 5 February 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 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”).

9.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 family members and/or villagers of her local community upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention in her family members or those local villagers to harm or kill her, that in any event after all these years that it is doubtful that they would still have any adverse interest in her, that her disputes with them were family or personal matters 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 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 working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her family members or those local villagers to locate her.

10.By a Notice of Further Decision dated 27 January 2017 the Director again rejected the Applicant’s claim in the absence of any additional facts from her 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”).

11.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 was filed on 17 February 2016, and for which she attended an oral hearing on 29 March 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 30 June 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found no substantial grounds for believing that the Applicant will face any future risk of serious harm from her family or those local villagers whom she had not seen or heard for more than 10 years, that in any event after all these years it doubted that they would still have any adverse interest in her, that there was no reliable evidence of any real intention on their part to harm her, and that with reasonable internal relocation available within Indonesia for her to move safely to other area away from her home district without any risk of being located by her family members or those local villagers that her claim for non-refoulement protection failed on all applicable grounds.

13.On 28 March 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely exhibited copies of all the previous decisions and documents without putting forward any ground for her intended application.  Nor did she request any oral hearing for her application.  As such and in the absence of any proper grounds demonstrating any error of law or procedural unfairness in her process before the Board or in its decision, I do not find any reasonably arguable basis for her intended challenge.

14.By then she was also way 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.

15.As the last day of the three-month period for her to file her Form 86 fell on 30 September 2017, the Applicant was therefore almost 6 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.

16.In the Applicant’s case, a delay of almost 6 months must be considered as very substantial or excessive, for which she did not provide any explanation. As the record shows that the Board’s decision was sent to her on the same day at her last reported address which was also the same as stated in her Form 86 and has never been returned through undelivered mail.  As such and in the circumstances I am unable to see any good or valid reason for her serious delay.

17.As for the merits of her intended application, as noted above the Applicant did not put forward any ground for her intended challenge.  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 both the Director and the Board in their respective 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, 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 delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 4^th 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