Rita Budiarti v. Torture Claims Appeal Board

HCAL 87/2021

[2021] HKCFI 1478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 87 of 2021

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 the Applicant in open court;

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 25 April 2019 refused; and

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

Observations for the Applicant:

1.The Applicant is a 38-year-old national of Indonesia who first arrived in Hong Kong in January 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 2 weeks of its early termination, but when her last employment contract was prematurely terminated on 14 February 2017, she did not depart and instead overstayed in Hong Kong and was arrested by the police on the same day. 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 discriminated or harmed by her family and/or the Muslim community for being a homosexual.   

2.The Applicant was born and raised as a Muslim in Lampung Timur, Sumatera, Indonesia. After leaving school she married her husband in her home district, and gave birth to a son.

3.Soon she discovered that her husband was an alcoholic with a quick temper, and would frequently behave abusively towards her with physical violence.

4.To avoid further abuses from her husband, the Applicant in January 2014 started to work as a foreign domestic helper in Hong Kong, and during which she formed a homosexual relationship with 3 women on separate occasions which she kept as a secret from her husband or her family in Indonesia, but sometimes in 2016 she started to receive telephones calls from both her mother and husband in Indonesia who claimed to have heard about it from her friends in Hong Kong and scolded her for doing something contrary to the Islamic faith, and warned her that she would be harmed or killed by the Muslim community in Indonesia.  

5.As a result the Applicant became fearful for her safety in Indonesia, and so after her last employment contract was terminated in February 2017, she was afraid to return to Indonesia and instead overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 February 2018 and attended a screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).  

6.By a Notice of Decision dated 15 March 2018 the Director of Immigration (“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 her 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 all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that her perceived fear will be real and foreseeable upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from her husband or the Muslim community, that her problem with her husband was a personal domestic dispute without any official involvement that state or police protection would be available to the Applicant if resorted to, that there is no evidence of any threats from the Muslim community in Indonesia against her as a homosexual, and that reliable and objective Country of Origin Information (“COI”) shows 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 parts of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her perceived enemies to locate her.

8.On 28 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 December 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 25 April 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found scant evidence from the Applicant but was prepared to accept that she is a lesbian which is according to COI not illegal in Indonesia if homosexual activities are conducted in private amongst consenting adults, and as the Applicant has confirmed in her evidence that she would live discreetly as a lesbian upon her return to Indonesia that there is no evidence to suggest any real risk of her being ill-treated by the Muslim community, and that in any event with state/police protection available to her as well as reasonable internal relocation for her to safely move to other parts of Indonesia away from her home district in large cities such as Jakarta without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.   

10.On 26 January 2021 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:

“ Decision(s) made in respect of my Non-refoulement Claims states all the details of my claim. I would be able to provide a copy of the same to the court upon my release from the Immigration detention. I believe that the Director of Immigration and the Adjudicator of Appeal Board reached the decision wrongly in assessing my Non-refoulement Claims. The decisions were not reasonable and fair (as required by the Wednesbury test). Indeed, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. In practice, the right to life is mainly protected by the criminal law and it must be protected from extra-judicial killings that I may face if I am deported back to my country.”

11.By then the Applicant was however 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.

12.As the last day of the three-month period for her to file her Form 86 fell on 25 July 2019, the Applicant was therefore more than 17 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 HKCA 393.

13.In the Applicant’s case, a delay of more than 17 months must be considered as extremely substantial and excessive, for which she did not provide any explanation in her supporting affirmation in which she claimed to have been detained at the Castle Peak Bay Immigration Centre (“CIC”), but the fact that she was able to make her application from there and also filed her affirmation in support shows that she was able to receive legal assistance while at CIC, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, and in the absence of any further details as to when she was being detained at CIC, I do not find any good reason for her such serious delay with her intended challenge.

14.As for the merits, if any, of her intended application, as noted above the Applicant did not provide any particulars or elaboration either in her affirmation or at the hearing of her application as to why she complains that the decision is unfair or unreasonable, and that on the facts of her own case and in the light of the scope and threshold of a BOR 2 claim, there is in my judgment simply no room for engaging the BOR 2 ground, as correctly found by the Board.

15.Given the Applicant’s own evidence that she intends to live discreetly as a lesbian if returned to Indonesia, and that the Adjudicator has adopted the correct approach in the Board’s decision ([52] – [53]) as laid down in HJ (Iran) [2010] UKSC 31 in assessing persecution risk in the Applicant’s situation in Indonesia together with the relevant COI, I do not find any error of law or procedural unfairness in the Board’s decision, nor do I find any merits in the Applicant’s intended application.  

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.Furthermore, 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 parts 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 leave application.

Dated the 25^th day of May 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