Siti Endang Komasih v. Torture Claims Appeal Board

HCAL 1012/2022

[2023] HKCFI 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1012 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 the Applicant 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 39-year-old national of Indonesia who arrived in Hong Kong on 29 December 2017 with permission to work as a foreign domestic helper until the expiration of the employment contract or within 14 days of its early termination, but after her last employment was terminated on 21 December 2021 when she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 6 months, she raised a non-refoulement claim for protection 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. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Donomulyo, East Lampung regency, Lampung Province, Indonesia. After leaving school she married her husband, and raised a family with 2 children in Bandar Lampung City, Lampung Province.

3.Due to her husband’s limited income, it was decided that she should go work as a domestic helper to earn a higher income while her husband would stay home to look after their children, and so in 2010 the Applicant departed for Taiwan to start her employment there, and remitted her monthly salaries to her husband in Indonesia for the support of their family.

4.In 2015 her sister died while giving birth to a child whom the Applicant took upon the responsibility of raising in her family, and in order to meet such additional financial burden, she changed to work as a domestic helper in China in 2015, and 2 years later in 2017 she came to Hong Kong to work as a foreign domestic helper at a higher income, but her husband continued to complain of insufficient means and demanded her with threats to send more money to him from Hong Kong, and when she was unable to do so after her last employment was terminated in December 2021, she was afraid to return to Indonesia, and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 April 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 26 April 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”).

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 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 to press money from her, that in any event her problem with her husband was a private domestic dispute between them 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 275 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.

7.On 7 July 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was deemed to have been filed outside the 14-day period required by Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded 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 decision dated 30 August 2022 the Board refused to allow the late filing of the Applicant’s notice of appeal.

8.It would be helpful to first set out the relevant parts of Section 37ZT of the Ordinance for dealing with such an application and which have recently been amended with effect as from 1 August 2021, and thus applicable to the present case, as follows:

“(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which –

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons.

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person –

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control.

(4) For the purposes of subsection (3), the fact that a person attempted to file one or more notices of appeal that do not comply with section 37ZS(2)(a) or (ab), whether within the period specified in section 37ZS(1) or otherwise, must not be taken as evidence that the person had exercised all due diligence to file a notice of appeal within the period...”

9.In applying these provisions, the Board in its decision made the following findings as to the late filing of the Applicant’s notice of appeal:

(a)  That the Applicant first lodged her notice of appeal on 11 May 2022 which was within the 14-day period as required but that it was not signed in compliance with Section 37ZS(2) of the Ordinance which stipulates that the notice of appeal must be in a prescribed form duly completed and signed;

(b)  That on the following day of 12 May 2022 the Applicant’s unsigned notice of appeal was returned to her at Ma Tau Kok Detention Centre where she was then known to be detained;

(c)  That the Board’s letter was returned undelivered on 26 May 2022 with a note from the Immigration Department that the Applicant had since 19 May 2022 been transferred to the Castle Peak Bay Immigration Centre (“CIC”);

(d)  That on 10 June 2022 the Applicant wrote to the Board enquiring about her appeal;

(e)  That on 13 June 2022 the Board enclosed a copy of its earlier letter of 12 May 2022 to the Applicant in CIC and reminded her to properly sign her notice of appeal;

(f)  That on 21 June 2022 the Board received the Applicant’s notice of appeal duly signed by her but as it was by then outside the 14-day period for appeal under Section 37ZS(1) of the Ordinance, and as it did not include any application for late filing of the notice of appeal as required by Section 37ZT(1), it was again returned to her accordingly for rectification;

(g)  That eventually on 7 July 2022 the Board received the Applicant’s notice of appeal with an application for its late filing and a statement of reasons in that essentially she had been detained at Ma Tau Kok Detention Centre and later at CIC, that she did not understand how to complete her notice of appeal properly, and had had to seek help from her friends to assist her to do so;

(h)  That such reasons did not demonstrate that the Applicant had exercised due diligence to file the notice of appeal within time or that there were circumstances beyond her control which meant she could not do so, as it was possible for her to consult others including the Board’s Secretariat for advice as to the proper process, and while her delay in providing a signed notice of appeal in response to the Board’s letter of 12 May 2022 was understandable in the circumstances as she did not receive that letter, but her failure to provide reasons for the delay as instructed did not demonstrate that she exercised due diligence or that her failure was due to circumstances beyond her control, and that it was not satisfied that the Applicant had exercised all due diligence to file her appeal within 14 days but failed to do so because of circumstances beyond her control; and

(i)  That while there is no longer any requirement under Section 37ZT to take the merits of the Applicant’s case and other relevant circumstances into account in deciding whether to allow the late filing of her notice of appeal, the Board nevertheless upon taking them into account found that the Applicant had not put forward any material which would result in any different findings to those made by the Director in relation to the risk of harm, the availability of state protection or the reasonableness and viability of internal relocation.

10.On the basis of such findings the Board proceeded to conclude that the late filing of the Applicant’s notice of appeal could not be allowed.

11.On 28 September 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 in her supporting affirmation of the same date, nor was she able to do so at the hearing of 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, or for that matter in the Director’s decision, I do not find any reasonably arguable basis for her intended challenge.

12.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.

13.In the Applicant’s case, the Board refused to allow the late filing of her notice of appeal for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 23 of its decision as noted above by correctly applying the relevant provisions of the relevant section 37ZT of the Ordinance, and notwithstanding the fact that since their amendments that it is no longer required to take into account of any other relevant matters of facts within its knowledge including the merits of the appeal and to be satisfied whether by reason of any special circumstances that would make it unjust not to allow the late filing of the notice of appeal that it was hitherto required to do, the Board nevertheless did also take it upon itself to consider those matters in the Applicant’s case and to be satisfied that the Applicant had failed to put forward any material that might result in any different findings to those made by the Director in relation to risk of harm or availability of state protection and internal relocation before arriving at its conclusion to refuse the late filing of the Applicant’s notice of appeal (see [22] – [23] of the decision). In the circumstances I am unable to see any reasonably arguable basis to challenge such findings of the Board.

14.Furthermore, and as noted above, 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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 respective consideration and assessment of the Applicant’s claim or the late filing of her notice of appeal.

16.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 19^th day of April 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