Amellia v. Torture Claims Appeal Board

HCAL 104/2019

[2021] HKCFI 3629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 104 of 2019

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 22 March 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Indonesia who arrived in Hong Kong on 14 August 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 April 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 May 2010, she did not depart and instead overstayed in Hong Kong and was arrested by police on 30 January 2011.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her father or his creditor for failing to assist him with his loan repayment and/or for failing to convert her religion from Christianity to Islam, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim. 

2.The Applicant was born and raised as a Christian in Desa Pucuk Sari, Weleri Sub-District, Kendal Regency, Central Java Province, Indonesia.  After leaving school she worked as a restaurant waitress in her home district, but in 2005 her father demanded that she should work as a foreign domestic helper so as to earn more money to help him to repay his many loans due to his own limited income, and so in December 2005 the Applicant went to work in Taiwan as a domestic helper and to remit money to her father every month for his loans repayments. 

3.In November 2006 the Applicant returned to Indonesia and refused to work in overseas again, but as her father was unhappy with her being unemployed for the next two years during which he would scold and beat her by slapping her on the face and hitting her with a wooden stick all over her body causing cuts and bruises.

4.One day in 2007 she was demanded by her father to sign a loan agreement with an unknown man for a loan for her father’s own use, and as a result her father threatened that she must return to work in overseas to earn money to assist him with his loan repayment, or else they would be killed by his creditor.

5.The Applicant then reported her father’s threats and ill-treatment to the local police, for which he was detained by the police for one week before being release without charge. 

6.Upon returning home her father continued to make threats against the Applicant, and after another beating by him the Applicant finally agreed to work in Hong Kong as a foreign domestic helper, and so in August 2008 she arrived to start her first employment, and from her salary she would make monthly remittance to her father to help with his loan repayments.

7.In 2009 or 2010 the Applicant was told by her father that the whole family had converted their religion to Islam and demanded that she should do the same, and when the Applicant refused, her father again made threats against her, but after a volcano erupted in her home country in 2010, she had lost contact with her family and had not since heard from her father again.       

8.Shortly thereafter on 26 May 2010 her then employment was prematurely terminated, the Applicant did not depart and instead overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim, and after it was rejected, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 31 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

9.While being released on recognizance pending the determination of her claim, the Applicant was arrested by police again on 20 February 2014 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 16 months.       

10.By a Notice of Decision dated 8 October 2015 the Director of Immigration (“The Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture risk including 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”).

11.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 she would be in danger of being harmed or killed by her father or his creditor upon her return to Indonesia 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 of her father to harm or kill her other than to put pressure on her to find employment and to give him financial assistance, or of any threats from his creditor whom she had not seen after 2007, nor had she heard from her father since 2010 that it is doubtful after all these years that there would still be any adverse interest in her, that in any event her problems with her father or his creditor were private or family disputes over monetary or religious issue 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 250 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 father or his creditor to locate her.

12.On 31 May 2017 the Director on his own initiative invited the Applicant to submit any 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 19 June 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 being violated upon her return to Indonesia.

13.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 20 October 2015, and for which the Board did not hold any oral hearing and dealt with her appeal in her absence and on paper, and on 22 March 2018 it dismissed her appeal and also confirmed the decisions of the Director.

14.In its decision the Board did not take issue with the Applicant’s claim of fear of harm from her father or his creditor over monetary or religious issues as asserted by her, but found no evidence of any real intention of either of them to seriously harm or kill her other than to put pressure on her to assist her father to repay his debts and/or to follow the family’s practice to convert into a Muslim, that in any event in the absence of any further threats from her father all these years after a volcano eruption in 2010 that it is doubtful that there would still be any adverse interest on her, and that having worked in various places and led an independent life for so many years away from her home district that the Applicant can always relocate elsewhere in Indonesia without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.       

15.On 11 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1)     Procedural impropriety in the Board’s failure to conduct sufficiently with due diligence that reforms and means of relief have been introduced in the assessment of her non-refoulement claim;

(2)     Procedural impropriety in the Board’s failure to conduct sufficient inquiry into the relevant COI;

(3)     Procedural impropriety/irrationality in the Board’s failure to assessment of lack of BOR 3 Risk and/or insufficient basis to support the conclusion of lack of BOR 3 Risk in the Applicant’s claim;

(4)     Error/misdirection in law in the Board’s failure to take into account the consideration of psychological strain and threat to the Applicant personally or threats to her directly to kill her;

(5)     Procedural impropriety in the Board’s failure to conduct oral hearing for the Applicant’s appeal and to dismiss her claim without hearing her is not fair and a failure to apply high standards of fairness; and

(6)     No sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP upon her refoulemnet to Indonesia.   

16.The Applicant did not request any oral hearing for her application, but by then her application was also out of time, as Order 53 Rule 4(1) of the Rules of the High Court, 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 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.

17.As the last day of the three-month period for the Applicant to file her Form 86 fell on 22 June 2018, she was therefore more than 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: AW v Director of Immigration [2016] 2 HKC 393.

18.In the Applicant’s case, a delay of more than 6 months must be considered as very substantial and inordinate, for which she explained in her supporting affirmation that she never received the decision in the mail as she had earlier changed her address without informing the authorities and hence she was not aware of it until much later but by then she was already out of time with her application. 

19.The record shows that the decision was sent on the same day to the Applicant’s then last reported address without being returned through undelivered post, and given her concession that she had failed to inform the authorities of her change of address that she has only herself to blame for being out of time with her application if that was indeed the case, otherwise in the absence of any further details or documentary evidence to corroborate her bare assertion of not receiving the decision in the mail, I am not satisfied that she has provided a good reason for her such serious delay.

20.As for the merits of her intended application with reference to her proposed grounds for judicial review, I do not find Grounds (1), (2) or (4) reasonably arguable in the absence of any details or particulars or elaboration as to how they would apply to her case, or why they would be relevant to her claim which is even on the basis of her own case at the highest which a private or family disputes over monetary or religious issues without any state or official involvement, and as such are clearly not reasonably arguable. 

21.As for the Applicant’s complaints under the remaining Grounds (3), (5) and (6), they can be summarized and considered together as follows:

“That the Board failed to assess her BOR 3 Risk properly or adequately without any oral hearing and that its determination that she would not face such a risk upon her return to Indonesia is Wednesbury unreasonable”

22.While it is true that the Board did not conduct any oral hearing for the Applicant’s appeal, to which there is no absolute right, and the question of whether it should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stack and the importance of the decision, the issues involved, and how the presence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277.

23.As noted above, the Applicant first made her torture claim in 2012, followed by her non-refoulement claim under BOR 3 risk and persecution risk to the Director for which she was represented by her lawyer from DLS and attended a screening interview before an immigration officer in 2015.  It is clear from the details disclosed in the Director’s decision that she had been able to make full and proper presentation of her claims including BOR 3 Risk, and in the absence of any further evidence or information which she might have advanced to the Board but was unable to do without any oral hearing before the Board, I do not find this ground reasonably arguable for her intended challenge.

24.Whilst some of the Board’s findings about the loan of the Applicant’s father and the resultant threats made against her as stated in §§32 – 35 of the decision appear to me just peripheral observation of the Adjudicator without any evidential basis from the materials available before the Board as no oral hearing had been held, and that the Adjudicator also appeared to have misconstrued the basis of the BOR 3 Risk in the Applicant’s claim when it concluded in §64 that there would not be any such risk to her because “It would not be in the interest of the loan shark and the Appellant’s father to harm her as long as the Appellant was willing to work overseas in order to pay the debts” when it was clearly her case that that is exactly what she would not to be able to do if she is refouled to her home country, I am not satisfied that such flaws would assist or advance the Applicant’s case any further given the correct finding of both the Board and the Director that state/police protection and reasonable internal relocation within Indonesia would be available to the Applicant to negate any risk arising from her disputes with her father that she may face upon her return to her home country.          

25.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. 

26.In the Applicant’s case, as noted above, 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 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.       

27.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. 

28.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 2^nd day of December 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