Derianti and Another v. Torture Claims Appeal Board

HCAL 1534/2018

[2022] HKCFI 1837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1534 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 oral submissions by the 1st Applicant in open court for her own and on behalf of the 2nd Applicant;

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 6 November 2017 refused; and

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

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 38-year-old national of Indonesia who last arrived in Hong Kong on 3 September 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract on 3 September 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 June 2008, she did not depart after the expiration of her extended stay on 14 October 2008, and was subsequently arrested by police on 28 November 2008. After she was referred to the Immigration Department for deportation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her foster brother over their family dispute, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis, for which she was subsequently released on recognizance pending the determination of her claim, during which she gave birth to her son, the 2^nd Applicant (“A2”) on 14 March 2013 out of a relationship with a man in Hong Kong, and for whom she also raised a non-refoulement claim on the same basis plus claim of fear of harm or discriminations from the Muslim community in Indonesia as an unwed mother and an illegitimate child upon their return to Indonesia.

2.A1 was born and raised as a Muslim by her foster mother in Bena, Kupang City, Nusa Tenggara Province, Timur, Indonesia during which she was often ill-treated by her foster brother who disliked her and refused to accept her in his family, and often threatened her to leave the family.

3.In 2002 after she was driven out of the house by her foster brother, A1 went to Malaysia and Singapore to work as a domestic helper before coming to Hong Kong in 2006 to work as a foreign domestic helper, but when her last employment was prematurely terminated 2 June 2008, she was afraid to return to Indonesia due to threats from her foster brother, and therefore overstayed in Hong Kong, and upon her arrest by the police, she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”), and after giving birth to A2 whom her foster brother also threatened to harm or kill, she also raised a non-refoulement claim for him on all applicable grounds and for whom she also completed a Non-refoulement Claim Form (“NCF”) and jointly attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 21 December 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including for A2 only risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from A1’s foster brother upon their return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no reason for him to harm them as long as they would not return to his family, that after all these years it is doubtful that he would still have any adverse interest in A1 or her son whom he has never even met upon their return to Indonesia, that it was in any event a private family dispute between A1 and her foster brother without any official involvement that state or police protection would be available to the Applicants 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 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 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 foster brother to locate them, and that relevant COI also show that both the Indonesian government and various non-governmental agencies and organizations would provide support and assistance to unwed mothers like A1 and illegitimate child like A2 upon their return to Indonesia without any risk or evidence of any harm or discrimination to them from the Muslim community.

6.The Applicants then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 29 August 2017 before the Board during which A1 gave evidence on their behalf and answered questions raised of their claims by the Adjudicator for the Board. On 6 November 2017 their appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found A1’s assertions as to her claimed fear of harm from her foster brother vague, incoherent, lack of details and evasive as just bald statements unsupported by any reliable evidence and that it was also incredible that her foster brother was able to find out about A2 and to make similar threats against him that it did not consider her to be a credible witness or that there would be any real risk of harm to either A1 or A2 from A1’s foster brother, and that even if such risk of harm from the foster brother were true that it was just a private family dispute without any official involvement that state/police protection would be available to the Applicants if needed upon their return to Indonesia, and that relevant COI show that protection, support and assistances from the Indonesian authorities and non-government agencies would also be available to both Applicants from any harm or discriminations against them as single woman/unwed mother or illegitimate child that their claim for non-refoulement protection failed on all applicable grounds.     

8.On 2 August 2018 A1 filed a Form 86 for herself only without A2 for leave to apply for judicial review of the Board’s decision, for which she explained at the hearing of her application was due to an oversight and was granted leave to amend her Form 86 to include A2 in her application, but no grounds for relief was given in the Form, and in her supporting affirmation of the same date A1 just attached a copy of the decision but without putting forward any proper ground for their intended challenge, nor was she able to do so at the hearing of their application when she merely stated that they want to remain in Hong Kong.

9.By then the Applicants were also out of time with their application, 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.

10.As the last day of the three-month period for them to file their Form 86 fell on 6 February 2018, the Applicants were therefore almost 6 months late with their 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.

11.In the Applicants’ case, a delay of almost 6 months must be considered as very substantial and inordinate, for which they did not provide any explanation in their Form or affirmation or at the hearing of their application, and as the record shows that the decision was sent on the same day to their last reported address without being returned through undelivered post, I am unable to see any good reason for their serious delay.

12.As for the merits, if any, of their intended application, as noted above the Applicants have failed to put forth any proper ground for their intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any merits in their intended application either.

13.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.

14.In the Applicants’ case, the Board rejected their claims essentially on its adverse findings against A1’s credibility or any risk of any harm to her or A2 upon their return to Indonesia for the thorough and detailed analysis and reasoning set out in paragraphs 56 – 72 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board or any merits in their intended application.

15.The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicants’ claim from A1’s foster brother if true is a localized one and that it is not unreasonable or unsafe for her to relocate with A2 to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.I am of course mindful of the fact that A2 is a minor now at only 9 years of age and was not legally represented in his appeal/petition before the Board or in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal/petition before the Board, when the proper approach of which have been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

17.In the present case, the claim of A2 was premised fundamentally on his mother’s claim of risk of harm from a single individual of which both the Director and the Board had doubted the credibility of the asserted threats but found even on A1’s own case as a localized one without any official involvement that state protection and/or internal relocation would be available to A2 if needed, and that the Board had also separately and properly considered and determined his claim as an illegitimate child in the care of a single/unwed mother in the Muslim community in Indonesia by taking into account and assessment of relevant COI to properly and correctly determine that necessary protection support and assistance would also be available to A2 to ensure that he as a minor child in his personal circumstances would not face any real risk of any harm in Indonesia (see §§67 – 71 of Board’s decision).                            

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 claims of both A1 and A2 in their own personal and cumulative circumstances, nor do I see any material that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to A2 that had not been advanced to the Board or considered by it due to lack of legal representation for him in his appeal/petition to or before the Board..

19.For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review including that of A2 as a minor and for whom I shall treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended application for judicial review, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 7^th day of July 2022.

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