Nunik Astutik v. Torture Claims Appeal Board

HCAL 1825/2020

[2021] HKCFI 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1825 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Indonesia who had been permitted to work as a foreign domestic helper in Hong Kong but her last employment contract was terminated in March 2018 after she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 14 months, and after her discharge 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 former husband for refusing to re-marry him.  

2.The Applicant was born and raised in Banyuwangi, East Jawa, Indonesia. After leaving school she married her former husband and moved to live with him in Desa Parijatah, Kecamatan Rogojampi, Banyuwangi.

3.Their marriage did not fare well as her husband was often being violent and abusive towards the Applicant that she in 2007 left the marriage to return to live with her mother in the same district, and in 2009 she came to Hong Kong to work as a foreign domestic helper during which she was informed that her husband had divorced her in Indonesia.

4.However, thereafter her former husband would come to her mother’s home looking to reconcile with the Applicant so that they could re-marry again, but when the Applicant rejected his proposal through her mother, he became furious and threatened to kill her upon her return to Indonesia.

5.The Applicant continued to work in Hong Kong until March 2018 when she was arrested by police for theft and was subsequently convicted and sentenced to prison, and upon her discharge and was referred to the Immigration Department for deportation, she raised her non-refoulement claim for protection as she was fearful of being killed by her former husband if she were to return to Indonesia, for which she completed a Non-refoulement Claim Form on 4 December 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 24 December 2018 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 former husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that it is doubtful that after all these years that her former husband would still have any adverse interest in her, that in any event it was a private personal dispute 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 (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 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 former husband to locate her.

8.On 9 January 2019 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 20 June 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 26 March 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence as to her claim of fear of being harmed or killed by her former husband for refusing to re-marry him vague, shifting, inherently inconsistent and illogical, and that in any event in the absence of any official involvement that state/police protection would be available to her upon her return to Indonesia as well as reasonable internal relocation for her to move to other area away from her home district without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds.   

10.On 14 September 2020 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 attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

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

12.As the last day of the three-month period for her to file her Form 86 fell on 26 June 2020, the Applicant was therefore late with her application by almost 3 months, and in considering whether to extend time, the court shall have regards 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 AW v Director of Immigration[2016] 2 HKC 393.

13.In the Applicant’s case, a delay of almost 3 months must be considered as substantial or significant, for which she did not provide any explanation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her delay.

14.As for the merits, if any, of her intended application, as already noted above, the Applicant has not put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge, 

15.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.     

16.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.

17.Furthermore, the Applicant on 23 November 2020 filed an affirmation stating that she would like to “cancel” her application as she wants to go back to her home country. In the circumstances and as I am not satisfied that there is any prospect of success in her intended application for judicial review, and in the absence of any good reason for her delay, I therefore dismiss her leave application.

Dated the 16^th day of February 2021.

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