Salbiyah v. Torture Claims Appeal Board and Another

HCAL 748/2018

[2020] HKCFI 2190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 748 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 17 May 2017 refused; and

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

Observations for the Applicant:

1.     The Applicant is a 43-year-old national of Indonesia who first arrived in Hong Kong on 29 April 2008 with permission to work as a foreign domestic helper, but when her last employment contract was prematurely terminated on 3 July 2011, she did not depart and instead overstayed and was arrested by police on 19 February 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 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 Wonosobo Regency, Central Java, Indonesia.  After leaving school she worked as a domestic servant and married her husband in her home district.

3.In 2007 her husband lost his business and started to indulge in drinking and frequently demanded money from the Applicant for his use, and when she was not willing or unable to do so, he would become abusive towards her by slapping, pushing and hitting her at will, and in 2008 at his demand she borrowed a loan from a local loan shark for his use, but when he failed to repay the loan, the loan shark and his followers would come to the Applicant’s home to take her valuables, break the furniture and threaten to kill her if she still failed to repay the loan. 

4.Fearing for her life, the Applicant decided to leave Indonesia by applying to work in Hong Kong as a foreign domestic helper, which she did on 29 April 2008, but when her last employment contract was terminated on 3 July 2011, she did not depart and instead overstayed in Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 13 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.While released on recognizance pending determination of her claim, the Applicant was arrested by police on 9 January 2014 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 15 months.       

6.By a Notice of Decision dated 9 August 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of her being harmed or killed by her husband or her creditor upon her return to Indonesia would materialize due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on their parts to harm or kill her, that her problems with them were domestic or personal 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 255 million people spread across a vast territory 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 or Surabaya where it would be difficult if not impossible for her husband or creditor to locate her.

8.By a Notice of Further Decision dated 19 April 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”).

9.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 19 August 2016, and for which she attended an oral hearing on 24 April 2017 before the Board during which she however declined to give any evidence or to answer any question put to her by the adjudicator for the Board.  On 17 May 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found the Applicant’s claim doubtful in the absence of any evidence from her during her appeal hearing when she declined to corroborate and clarify her claim, but found in any event with state/police protection as well as reasonable internal relocation within Indonesia available for her to move safely to other area away from her home district without any risk of being located by her husband or creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.On 30 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the 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 without putting forward any ground for her intended challenge.  Nor did she request any oral hearing for her application.

12.By then she was also seriously 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 17 August 2017, the Applicant was therefore 8 ½ 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: AW v Director of Immigration [2016] 2 HKC 383.

14.In the Applicant’s case, a delay of 8 ½ months must be considered as very substantial and excessive, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent to her last reported address without being returned through undelivered mail, I do not see any good reason for her serious delay.

15.As for the merit, if any, of her intended application, as noted above the Applicant did not put forward any proper ground for her application, 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 intended challenge.       

16.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.  

17.In the Applicant’s case, 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 her 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.     

18.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.

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 any good reason for her serious delay, I refuse to extend time and accordingly dismiss her application.

Dated the 7^th day of September 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