Liya Jasmin v. Torture Claims Appeal Board and Another

HCAL 1032/2020

[2021] HKCFI 3553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1032 of 2020

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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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 January 2018 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 last arrived in Hong Kong on 28 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 28 August 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 7 March 2014 she did not depart and instead overstayed and was arrested by police on 1 August 2014.  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 creditor over her outstanding debts.  She was subsequently released on recognizance pending the determination of her claim.

2.family with 2 children in her home district.

3.As her husband was a fisherman with little income, the Applicant in 1997 started to work as a domestic helper in various countries including Malaysia, Kuwait and Taiwan.

4.In 2011 her mother was hospitalized for medical treatments, and to meet her medical expenses the Applicant borrowed a loan from a fellow villager repayable within 2 years and with monthly interest payments, for which she then came to work in Hong Kong in October 2011 as a foreign domestic helper, and remitted money to her husband every month for her loan repayments.

5.However, after her last employment was prematurely terminated on 7 March 2014, she was unable to make further remittance to her husband to repay her creditor, and when she was told that her creditor had made threats to her husband against her, and after one occasion when her creditor came with her sons to threaten the Applicant’s family and damaged things in her home, the Applicant was afraid to return to Indonesia and overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 31 May 2016 the Director of Immigration (“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 assessed the level of risk of harm from her creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that there was no evidence of any real intention of her creditor to seriously harm her other than to put pressure on her to repay her debts, and that in any event it was a private monetary matter between them 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 255 million people spread across a vast territory of more than 1.8 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 creditor to locate her.

8.On 19 June 2017 the Director on his own initiative in writing invited the Applicant 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”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 7 July 2017 rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 Risk being violated upon her return to Indonesia.

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 13 June 2016, but subsequently on 18 December 2017 she in writing to the Board requested to withdraw her appeal, and upon being satisfied that her request to withdraw her appeal/petition was freely sought, that she considered it safe for her to return to her home country, and that she understood the consequences of the withdrawal that the Board on 2 January 2018 in writing directed that the Applicant’s appeal/petition be withdrawn and dismissed, and confirmed the decisions of the Director.

10.On 28 May 2020 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 or in her supporting affirmation of the same date, nor did she request any oral hearing for her application.

11.By then the Applicant was also seriously out of time with her application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for judicial review be made promptly and in any event within three months from the day 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 the Applicant to file her Form 86 against the Board’s decision fell on 2 April 2018, and hence she was more than 2 years late with her application, not to mention the even more lengthy delay as regard the earlier decisions of the Director, 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; 9iii0 the merits of the intended application; and (iv) any prejudice to eth putative respondent and to public administration: AW v Director of immigration [2016] HKC 393.

13.In the Applicant’s case, a delay of more than 2 years must be considered as extremely inordinate, for which she did not provide any explanation in her Form or affirmation, 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 the Applicant’s serious delay.   

14.As for the merits, if any, of the intended application, as noted above the Applicant has also failed to put forth any proper ground for her intended challenge of either the decisions of the Director or of the Board, and in the absence of any error of law or irrationality 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 merits in her intended application either.

15.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.

16.In the Applicant’s case, the Board acceded to her written request to withdraw her appeal/petition against the Director’s decisions upon being satisfied that it was freely sought by her, that she fully understood the consequences of the withdrawal, and that there is good reason for her proposed withdrawal of her appeal namely that she considered it safe for her to return to Indonesia.  As such, and as it has been well established that once the Board has dismissed an appeal against the Director’s rejection of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal: Re Das Purnima Rani, CACV 85/2019 [2019] HKCA 669, and in the absence of any suggestion or evidence from the Applicant to show that her earlier withdrawal was invalid, or of any error of law or procedural unfairness in the Board’s process or decision to dismiss her appeal/petition at her request being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

17.As for the intended challenge of the Director’s decisions, the fact is that it has been established by the Director in his first decision that the risk of harm in the Applicant’s claim based on her own case 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.                

18.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.Furthermore, the Applicant recently on 27 October 2021 wrote to the Court to request to withdraw her application for judicial review as she wants to return to Indonesia as soon as possible.

20.In the premises, and as I am for the reasons given 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, and given her latest confirmation of her wish to return to her home country, I refuse to extend time and accordingly dismiss her leave application.

Dated the 24^th day of November 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