Nurhayati-marbun v. Torture Claims Appeal Board and Another

HCAL 141/2019

[2022] HKCFI 3182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 141 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 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 17 October 2017 refused; and

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

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Indonesia who last arrived in Hong Kong on 30 March 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 2 January 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 January 2009, she did not depart and instead overstayed, and was arrested by police on 3 March 2009. 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 for leaving their marriage, 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 Sibolga Tapanuli, Sumatra Utara, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.Soon she found her husband violent and abusive towards her, and that they would often quarrel and fight over their financial problems as her husband was often unemployed, and to avoid further conflicts with him the Applicant in 2000 went to Taiwan to work as a domestic helper to help support the family, and in 2003 she then came to Hong Kong to work as a foreign domestic helper, returning to Indonesia only during holidays.

4.In May 2007 when she returned to her home in Indonesia for holiday, the Applicant informed her husband of her wish to end their marriage, but her husband reacted angrily and threatened to kill her if she dared to leave their marriage.    

5.The Applicant therefore fled back to Hong Kong and to cut off any further contact with her husband, but when her last employment was prematurely terminated in January 2009, she was afraid to return to Indonesia where she would be harmed or killed by her husband who could perform black magic on her, and so she overstayed in Hong Kong, and upon her 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 8 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.While released on recognizance pending determination of her claim, the Applicant was arrested by police again on 14 October 2014 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 14 ½ months.                

7.By a Notice of Decision dated 27 May 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on the 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”).

8.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, that it was in any event 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 255 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.

9.On 28 February 2017 the Director on his own initiative in writing 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 14 March 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 her right to life under BOR 2 being violated upon her return to Indonesia.

10.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 which was filed on 2 June 2016, and for which she attended an oral hearing on 7 April 2017 before the Board during which she confirmed and adopted her evidence as contained in the hearing bundle for her claim but elected not to give any further oral evidence or to answer questions from the Adjudicator for the Board. On 17 October 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found no evidence of any real risk of the Applicant being harmed or killed by her husband or of any real intention of him to do so after all these years and with whom she had had no further contact more than 10 years ago, 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 her upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulemnt protection failed on all applicable grounds.  

12.On 15 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, and in her written submissions dated 18 August 2021 she put forward the following grounds for her intended challenge:

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

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

(3) That the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

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

(6) That the hearing bundle was provided to her late giving her insufficient time to prepare for her appeal before the Board which caused her confusion and although she answered all the questions honestly yet her credibility was questioned that led her to believe that it was an unfair hearing due to lack of care of the Board for failing to make appropriate arrangements in relation to the hearing bundle.

13.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 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.

14.As the last day of the three-month period for her to file her Form 86 fell on 17 January 2018, the Applicant was therefore some 12 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.

15.In the Applicant’s case, a delay of 12 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her application that she was then unrepresented and did not know how anything about legal procedure, and had had to spend much time looking for help, but by the time she was able to do so she was already out of time with her application.

16.The record shows that the Board’s decision was sent on the same day to the Applicant’s then reported address without being returned through undelivered post, and while I accept that she would need legal assistance with her application, that cannot on any view be accepted as a good or valid reason for her such serious delay. 

17.As for the merits, if any, of her intended application, those listed grounds for her intended challenge are however all just some broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how would they 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 or unreasonable manner, or which source of news that the Board had relied on were unofficially 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 procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by eth Applicant, I do not find any merits in her intended application either.

18.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.

19.As for her complaint over the hearing bundle being provided to her late for her appeal hearing before the Board thereby giving her insufficient time to prepare for her appeal, 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 decision 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 she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal, and instead elected not to give any further evidence for her claim. As such I do not find anything amiss over the provision of the hearing bundle to the Applicant for her appeal before the Board, nor do I find it reasonably arguable for her intended challenge either.

20.Furthermore, the fact is that it has been correctly stablished by both the Director and the Board in their respective 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

21.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.

22.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 17^th day of October 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