Yuliani Rahmawati Galiman v. Torture Claims Appeal Board

HCAL 2345/2018

[2021] HKCFI 3866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2345 of 2018

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 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 12 April 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 21 May 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract on 21 May 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 21 January 2009, she did not depart and instead overstayed, and was arrested by police on 5 October 2010.  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 husband and/or his creditor for failing to assist him in repaying his debts, 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 in East Java, Indonesia.  After leaving school she went to work as a domestic servant in Singapore, and in 2004 she returned to Indonesia to marry her husband who was a farmer in her home village, but she soon discovered that he was hot tempered and an alcoholic and would behave violently towards her when drunk, and to avoid his abuses, she decided to return to work by coming to Hong Kong in 2006 to work as a foreign domestic helper.  

3.However, several months later she received a telephone call from her husband demanding for money from her to help him to repay his loans, and when she refused, he then made death threats against her and kept making threatening phone calls to her, and after her last employment was terminated in 2009, she was afraid to return to Indonesia, and so she 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 22 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 9 August 2016 the Director of Immigration (“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”).

5.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 husband or his creditor upon her return to Indonesia as low due to the absence or low intensity and frequency of past ill-treatment from them, that there was never any threats from her husband’s creditor while she also had no further contact with her husband since 2007 that it is doubtful that after all these years since she left the country that there would still be any adverse interest in her in Indonesia, that in any event her problems with her husband or his creditor were private domestic or 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 (“COI”) 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 where it would be difficult if not impossible for her husband or his creditor to locate her.

6.By a Notice of Further Decision dated 2 August 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”).

7.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 appeal which was filed on 23 August 2016, and for which she attended an oral hearing on 22 January 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 12 April 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her husband over his debts but found from her own evidence that she has had no further contact with him for years since her departure that it doubted that he would still have any adverse interest in her after all these years, and that in any event it was a private domestic dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.  

9.On 25 October 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1)    that the Director had wrongly decided the Applicant’s case on various grounds but the Adjudicator did not address those issues and instead came up with the assessment on more or less of a template basis;

(2)    that the Applicant was not given language assistance with translation of the Director’s decision as English is not her first language that without legal assistance it was hard for her to understand how to proceed with her appeal to the Board which was procedurally unfair to her;

(3)    that the Board was illogical, unreasonable and unfair in completely rejecting her claim without explaining what assertions that it found that the Applicant had so badly explained which was an example of the Board providing inadequate reasons for rejecting her claim and not dealing with the facts in a proper way which it failed to take into account properly;

(4)    that the Board’s decision was never explained to the Applicant that without knowing thoroughly how her case had been determined that it was not fair to the Applicant;

(5)    that the Director had merely adopted a formula and biased approach in assessing her claim and that the same COI were used to support her assertions of overall corruption and ineffectiveness of the Indonesian police but at the same time to show that reforms have been on-going in the police that there are objective indications of positive in recent years; and

(6)    that the hearing bundle was served on the Applicant shortly before her appeal hearing before the Board thereby giving her insufficient time to prepare for her appeal which is procedurally unfair.  

10.By then however the Applicant was out of time with her Form 86, 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 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.

11.As the last day of the 3-month period for her to file her Form 86 fell on 12 July 2018, the Applicant was therefore some 15 weeks 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.

12.In the Applicant’s case, a delay of 15 weeks must be considered as very substantial and inordinate, for which she explained in her supporting affirmation that as she could not read English and no longer had legal representation, and that she had difficulties getting help to prepare the necessary documents for her present application that by the time she was able to do so, she was already out of time with her application.

13.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 while it is accepted that the Applicant as an unrepresented litigant would require help with the preparation of her present application, in the absence of any further details or documentary evidence to corroborate her bare assertions, I am not satisfied that she has provided a good reason for her such serious delay or that it would have taken her more than 6 months in total to be able to make her present application.    

14.As for the merits, if any, of her intended application, most of her proposed grounds as stated above are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the Adjudicator had erred in their decisions, or in what way did the Director or the Board reach their decisions wrongly or that they were unfair or unreasonable, or how did they fail to take into account of the relevant COI or being selective or improperly rely on irrelevant COI.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and while she may not be able to read English, it is clear that she was assisted by an interpreter during her appeal hearing before the Board and during which she never raised any such issue to the Board.  As such 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 of these grounds reasonably arguable for her intended challenge. 

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.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her shortly before her appeal hearing before the Board which consisted of documents in English including the Director’s decision thereby giving her insufficient time to prepare for her appeal.

17.Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, nor did she attend the hearing of her application without any explanation, I note that most of the documents including her SCF and the Director’s decisions should be already well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and as noted above that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

18.Furthermore, the fact is that the Applicant’s case was accepted by both the Director and the Board as stated by her in her claim but that it has also been established by both the Director and the Board in their respective decisions that the risk of harm in her claim as so stated 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.                

19.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.

20.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 24^th 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