Anik-kuwitasari v. Torture Claims Appeal Board

HCAL 1060/2022

[2022] HKCFI 3443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1060 of 2022

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Indonesia who last arrived in Hong Kong on 1 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 March 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 July 2021, she did not depart and instead overstayed, and was arrested by police on 29 December 2021. 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 creditor over her outstanding debts and/or by her husband for failing to send him money for his use.

2.The Applicant was born and raised in Village Gorang Gareng, Nguntoronadi Magetan, Indonesia. After leaving school she first worked as a domestic helper in Singapore before coming to Hong Kong in 2008 to work as a foreign domestic helper.

3.In 2015 she returned to Indonesia to marry her husband and raised a family with a daughter in his home district in Kebon Sari, Madiun, Jawa Timur.

4.However, soon she discovered that her husband was lazy and was often out of work, and so in 2016 she returned to work as a foreign domestic helper in Hong Kong to support the family.

5.In 2017 the Applicant intended to divorce her husband, but he refused and threatened to kill her if she dared to do so, and insisted that she should continue to work in Hong Kong so as to send him money every month for his use.

6.In 2019 during her visit in Indonesia for holiday, the Applicant borrowed a loan from a local money-lender to help her father to settle his debts, and thereafter she returned to work in Hong Kong by remitting money to both her father for repayment of her loan by instalments in addition to sending money to her husband for his own use.

7.However, when her last employment was prematurely terminated 26 July 2021 and she was unable to send any money to her father for repayment of her loan or to husband for his use, and for which she received threats from both her creditor and her husband, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after 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 25 February 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 11 May 2022 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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”).

9.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 creditor or her husband 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 either of them to harm or kill her, that in any event her problems with them were private monetary or domestic 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 277 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 such as Jakarta where it would be difficult if not impossible for her creditor or her husband to locate her.

10.On 30 May 2022 the Applicant first lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was not signed or dated by her as required by Section 37ZS(2) of the Immigration Ordinance, her Notice of Appeal was returned to her for her completion, which she subsequently did and was re-filed with the Board on 9 June 2022, and as it was in any event filed outside the 14-day period required under Section 37ZS(1) of the Ordinance after the Director’s decision was given to her and which period ended on 25 May 2022, the Board therefore proceeded under Section 37ZT(2) to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Notice of Decision dated 30 August 2022 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

11.In its decision the Board found the Applicant to have failed to provide any reason for the late filing of her Notice of Appeal as required by Section 37ZT(1) of the Ordinance, and as such it was not satisfied that the Applicant has exercised all due diligence to file the Notice within the period specified in Section 37ZS(1) but failed to do so due to circumstances beyond her control under Section 37ZT(3) of the Ordinance.

12.On 10 October 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

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 Applicant’s case, the Board refused to allow the late filing of her Notice of Appeal on its correct finding of her failure to provide any reasons therefor, or for that matter any reasons why she also failed to duly sign her first Notice of Appeal with the Board, when it was in fact already out of time, and as rightly pointed out by the Board that under Section 37ZT(4) of the Ordinance, the fact that the Applicant did attempt to file her first Notice of Appeal but was not in compliance of Section 37ZS(2) because it was not duly completed and signed by her could not be taken as evidence that she had exercised all due diligence to file her Notice of Appeal within the required period, I do not find any error of law or irrationality in the Board’s decision to refuse to allow the late filing of the Applicant’s Notice of Appeal.

15.Furthermore, the fact that the Board did also go on to take into account of the merits of the Applicant’s appeal or other relevant circumstances in its consideration, which was in fact no longer necessary given the requirement of Section 37ZT(2) of the Ordinance for the Board to only take account of the statement of reasons stated in the application for the late filing of the notice of appeal and the evidence relied on in support of the reason, as the law was so amended on 1^st August 2021, and of which as noted above the Applicant had failed to do so, and so doing it found that she had failed to put forward any material which would result in any different findings to those made by the Director as to the availability of state protection and reasonable internal relocation upon 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, there is in any event no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.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 the Director’s consideration and assessment of the Applicant’s claim or in the Board’s refusal to allow the late filing of her Notice of Appeal.

17.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 11^th day of November 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