Luluk Dyaningsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 734/2019

[2023] HKCFI 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 734 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 15 March 2019 is late[1]. This issue will be dealt with below.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court held a hearing on 17 October 2022, but the applicant was absent without prior notice to the Court. Her application is therefore dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Indonesia. She last entered Hong Kong as a foreign domestic helper on 6 July 2012 and was permitted to stay until 6 July 2014 or two weeks after termination of contract, whichever was earlier. On 25 March 2014, her employment contract was prematurely terminated. She did not depart and had overstayed since 9 April 2014. On 15 May 2014, she was arrested by the police. On 21 May 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her mother and other family members, who forced her to marry Ahmed Zainuri (“AZ”).

5.According to the applicant, she realized that she liked women when she started working in Hong Kong. She had a girlfriend in Hong Kong. In September 2012, the applicant’s mother demanded her to marry AZ who was rich. The applicant refused. Her mother later found out that she was a lesbian. After failed attempts to persuade the applicant to marry AZ, the applicant’s mother started to threaten her. She told the applicant that lesbians were not accepted under Islamic law and she could kill the applicant without committing any sins. In the end of November 2012, the applicant had ceased contact with her mother. However, she still feared that they would harm or kill her or that she would not be accepted in Indonesia as a lesbian. As a result, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 18 December 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm. Meanwhile, her mother’s intention was only for her to get married but not to harm or kill her [13]; (ii) the threats from her family members were localized [14]; (iii) state protection would be available to her [15]-[19]; and (iv) internal relocation was a viable option [20].

8.In the Notice of Further Decision dated 15 May 2017, the Director also found that the applicant’s right to life would not be violated and dismissed her claim on BOR 2 risk (the “Director’s Second Decision”).

9.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.The applicant appealed the Director’s Decisions to the Board. The oral hearing for her appeal was first scheduled to be on 10 July 2017. However, despite the applicant acknowledged that she received the notice of hearing, she still failed to attend. Thereafter, an oral hearing was rescheduled to be held on 28 July 2017. While the letter informing the applicant of the hearing date was returned to the Board, a staff of the Board successfully telephoned the applicant and reminded her of the rescheduled hearing date. The applicant acknowledged the telephone reminder. Yet, on the date of the rescheduled hearing, the applicant was again absent. She had also failed to respond to the letter requesting an explanation for the absence. As a result, the Board proceeded to determine her appeal on paper [24]-[29].

11.The Board first considered the country of origin information (“COI”) on the relevant topics, such as the information on abuses and discriminations based on sexual orientation [30]-[35]. It proceeded to consider the appeal. The Board found that it was unlikely that she would be harmed or killed by her mother or her brother if refouled. It stated that, as a grown-up woman who had been living abroad since 2007, earning her own living, the applicant could choose not to live in her home village. It would be implausible for her family members to locate her elsewhere since she stopped contacting them in 2012. In addition, the Board found that this dispute did not have state involvement and that the Indonesia criminal code did not prohibit private consensual homosexual relations between adults [38]. Further, while recognizing that there were complaints against government officials and polices, the Board found that the applicant could seek help from women centres if she was pursued by her family members [48]-[49]. Meanwhile, the Board considered that, based on the COI, she could relocate to big cities, such as Jakarta, where people were more liberal minded. She could also seek assistance from the non-governmental organizations which had been helping people with diverse sexual orientations [50]-[52].

12.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

13.The applicant has filed Form 86 dated 15 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant only enclosed the Board’s Decision without raising any specific ground.

DISCUSSION

15.As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file her notice of appeal is on 4 January 2018. The delay is over 1 year and 2 months. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merits of the applicant’s case.

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.There is no valid ground to challenge the Board’s Decision.

20.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.I refuse to extend time for the applicant to apply for leave for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 3^rd day of January 2023

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