Titis Gutamasari v. Torture Claims Appeal Board

HCAL 128/2019

[2022] HKCFI 2883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 128 of 2019

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 6 September 2018 refused; and

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

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 1 July 2002 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 8 February 2010 after she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 2 months, during which she raised a torture claim with the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to send him money for his use, 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 Desa Gempol, Sewu, Jawa Tengah, Indonesia. After leaving school she married her husband, and raised a family with 2 children in her home village.

3.However, she soon found her husband violent and abusive towards her, and so in about 1998 she left him to move back to her parents’ home, and in 2001 she started to come to Hong Kong to work as a foreign domestic helper, during which she was told by her mother that her husband had incurred debts that he demanded the Applicant to send him money to help him with his repayment of his debts or else he would kill her, and so the Applicant would from time to time remit money to him, but after she was arrested by police in 2010 and lost her employment, and upon her discharge from prison, she was afraid to return to Indonesia, and so she raised her non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 2 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 7 December 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her 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 Applicant’s claim and assessed the level of risk of harm from her husband upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than to press her for money for his use, that after all these years since she left the country and ceased to have any further contact with him it is doubtful that he would still have any adverse interest in her, that in any event it was a private domestic dispute between the two of 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 258 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 the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 22 March 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 6 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the Applicant’s evidence as to her alleged threats and abuses by her husband vague, confused and inconsistent that it doubted the credibility of her claim of fear of harm from her husband whom she had not seen or had any further contact with since she left the country for Hong Kong in 2001, and that there is no evidence that she had been harmed or ill-treated by her husband since their separation in 1998 when she moved back to her parents’ place that it rejected her claim that she still has any fear of her husband or that there would be any real risk of harm from him upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.     

8.On 14 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her written submissions dated 10 September 2021 she put forward the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse her appeal were unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which resulted in making groundless speculation that it would be safe for her to return to her home country; and

(6) That the hearing bundle with the majority of documents in English was not provided to her with sufficient time to enable her to properly prepare for her appeal before the Board due to her limited skill in English and was unable to find a reasonably cheap interpreter to assist her for her appeal that the Board acted procedurally unfair to her in her appeal.  

9.By then the Applicant was 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 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 her to file her Form 86 fell on 6 December 2018, the Applicant was therefore more than 5 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.

11.In the Applicant’s case, a delay of more than 5 weeks must be considered as very substantial and 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 then reported address without being returned through undelivered post, and as she also failed to attend the hearing of her application without any explanation, I do not see any good reason for her serious delay.

12.As for the merits, if any, of her intended application, those grounds put forth by her as listed above are however 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 would apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or how did the Adjudicator fail to take into account of relevant COI or what news of source were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them 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, I do not find any merits in her intended application.

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.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 the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal due to her inability to read English.

15.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, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decisions should be 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 that at her oral hearing before the Board 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, nor do I find this ground reasonably arguable for her intended challenge either.

16.Furthermore, the fact is that it has been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim 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 eth 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.                

17.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.

18.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 16^th day of September 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