Supiati v. Torture Claims Appeal Board

HCAL 22/2019

[2022] HKCFI 2421

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 22 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 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 2 February 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Indonesia who last arrived in Hong Kong on 13 June 2003 with permission to work as a foreign domestic helper until the expiration of her employment contract on 13 June 2005 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 August 2003, she did not depart and instead overstayed, and was arrested by police more than 8 years later on 19 November 2011, and 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 by his creditor over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Tuban, East Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in their home district.

3.Soon she discovered that her husband was addicted to gambling and drinking, and would be abusive towards her by slapping and beating her when drunk, and to avoid his abuses, she therefore came to Hong Kong in 1998 to work as a foreign domestic helper, returning to her home in Indonesia only during holidays.

4.In 2005 her husband borrowed a loan from a local money-lender naming her as the guarantor for his loan without her consent, and thereafter he left home to work elsewhere, and it was later when she was told by her mother that his creditor came looking for her with threats for repayment of his loan that she learnt about the matter, and when she later contacted her husband on the phone about it, he blamed her for failing to make repayment on his behalf and also made threats against her, and so when her last employment contract was terminated in 2003, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 11 December 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 21 April 2015 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”).

6.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 of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her husband or his creditor to seriously harm or kill the Applicant since their separation after all these years and that his creditor has never even met her before, that in any event they were private domestic or monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Indonesia, 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 253 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 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.

7.On 13 May 2015 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 15 April 2016 before the Board during which she gave oral evidence and also answered questions raised of her claim by the Adjudicator for the Board. On 2 February 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from her husband and his creditor over his outstanding loan but found her problems with them were private domestic or monetary disputes without any official involvement that state/police protection would be available to her upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located by her husband or his creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.Meanwhile on 23 March 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 26 April 2017 also 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.

10.The Applicant did not appeal to the Board against this Further Decision of the Director, but almost 2 years later on 4 January 2019, she filed her Form 86 for leave to apply for judicial review of the Board’s decision of 2 February 2017, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1)  Procedural impropriety in failing to properly apply para 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence that reforms and means of relief introduced must be effective in any event of the Board ‘s decision which focused on whether such reliefs showed merely signs of positive improvement;

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

(3)  Procedural impropriety or irrationality in failure to provide reasons for its assessment of BOR 3 Risk and/or sufficient basis to support its conclusion of lack of BOR 3 Risk;

(4)  Error/misdirection in law in failing to take into account the consideration of psychological strain and threats to the Applicant personally of being killed if returned to her home country; and

(5)  That there was no sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture or CIDTP upon refoulement to her home country.

11.By then the Applicant was however 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 leave to apply for judicial review be made promptly and in any event within 3 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 her to file her Form 86 fell on 2 May 2017, the Applicant was therefore 1 year 8 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.

13.In the Applicant’s case, a delay of more than 1 year and 8 months must be considered as extremely substantial and obstinate, and even if she were to argue that the Director’s subsequent invitation for her to submit additional facts relevant to her non-refoulement claim on “all applicable grounds” could have extended the period for her to apply for judicial review of the Board’s decision, she would still have been seriously out of time with her intended application, for which she explained in both her affirmation and at the hearing of her application that she moved to another address at the time but without informing the authorities, and hence she never received the Board’s decision in the mail, and it was much later when she reported to the Immigration Department on her recognizance that she was informed by her immigration officer of the decision, but by then she was already seriously out of time with her application.

14.The record shows that the Board’s decision was sent on the same day to her then reported address without returning through undelivered post, and that the Applicant did not provide any further details or evidence to corroborate her bare assertions, while if indeed she did change her address at the material time, it was clearly her duty to inform the relevant authorities, and as she conceded she did not do so, she has only herself to blame for failing to receive the decision in the mail, and as such I am not satisfied that she has provided a good reason for her serious delay.

15.As for the merits, if any, of her intended application, her proposed grounds are all 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 apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or fail to make sufficient inquiry or give sufficient reasons for its assessment or determination of her non-refoulement claim or appeal, while even on the factual basis of her own case of domestic and/or monetary disputes with her husband or creditor without any involvement of any torture or CIDTP or persecution risks that her non-refoulement claim simply did not engage any of the applicable grounds. As such I do not find any of her proposed grounds reasonably arguable for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in her intended application either.

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.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in 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.

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 5^th day of August 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