Wulandari v. Torture Claims Appeal Board and Another

HCAL 1126/2021

[2023] HKCFI 1014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1126 of 2021

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
	cconsideration of the documents and oral submissions 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 8 April 2021 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Indonesia who last arrived in Hong Kong on 25 August 2018 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 upon the termination of her employment contract she did not depart and instead overstayed, and was arrested by police on 20 April 2020. 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 husband over their monetary/domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Semarang, Java, Indonesia. After leaving school she worked in various jobs, married her husband and raised a family with 2 children in her home district.

3.In 2016 some unknown men came to the Applicant’s home looking for her husband claiming that he owned them large amount of debts which he had not been repaying for several months, and when the Applicant explained that her husband was out working, they said they would be back.

4.Later when the Applicant informed her husband about those men looking for him, he admitted of owning them debts and demanded money from her to help him with his debts, but when she was unable to do so, he lost his temper and beat her, threatening to sell her for prostitution.

5.For the next several weeks their disputes continued, and after another beating by her husband when the Applicant was cut in her right leg with broken glass, and when his creditors kept coming back to demand that she should repay her husband’s debts for him, the Applicant became fearful for her safety and therefore fled from their home one day in late 2017 with her children to take shelter in her father’s place, and in 2018 she departed Indonesia for Hong Kong to work as a foreign domestic helper, but after her last employment contract was terminated, she was afraid to return to Indonesia and overstayed in Hong Kong, and upon 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 26 August 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 28 September 2020 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”).

7.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 to pay him money, that in any event it was a private domestic or monetary dispute between the two of 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 260 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.

8.On 14 October 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it could be heard by the Board the Applicant on 16 March 2021 in writing to request to withdraw her appeal, and upon receiving further confirmations in writing from her on 31 March 2021 regarding her application for withdrawal, the Board by a decision dated 8 April 2021 directed that her appeal/petition be withdrawn, disposed of and finally determined, and that the Director’s decision be confirmed.

9.However, 4 months later on 11 August 2021 the Applicant filed a Form 86 for leave to apply for judicial review of both decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1)  That the Director reached the decision wrongly in assessing her case which decision was not reasonable or fair as the right to life must be protected by criminal law from extra-judicial killings which she may face if deported back to her home country;

(2)  That the Director failed to appreciate or give sufficient weight or importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That Director failed to recognize that the Applicant was tortured at the behest of the state law enforcement agencies and highly placed politicians that the state would be held rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence which was a clear case of unfair attitude by the Director which in itself is enough to render the decision void;

(4)  That the Director failed to recognize the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations had compiled reports on the matter which stated testament to the Applicant’s assertions which show that the Director failed to attain the high standard of fairness required by the Wednesbury test that it should be considered unreasonable in the scope of public law.  

10.By then the Applicant was however already 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 date 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.

11.As the last day of the 3 month-period for her to file her Form 86 to challenge the Board’s decision fell on 8 July 2021, the Applicant was therefore one month late with her application, not to mention the even longer delay regarding the earlier decision of the Director of 28 September 2020, 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.

12.In the Applicant’s case, a delay of 1 month as regard the Board’s decision must be considered as substantial and inordinate, not to mention that much longer delay regarding the Director’s decision, for which she explained at the hearing of her application that she was then pregnant with a child from her relationship with a local man in Hong Kong during which she was suffering from all sorts of medical issues that she was unable to file her application within the required period, and that she was then also busy making a separate application to the Immigration Department for a dependent visa based on her relationship with the father of her child, whose birth certificate she has produced in corroboration of her explanations. 

13.The record shows that the Board’s decision was sent on the same day of 8 April 2021 to the Applicant’s then reported address without being returned through undelivered post, while the birth certificate produced by her also shows that she did give birth to a child on 21 January 2022, which would put the time of her pregnancy within the same period within which she was required to file her Form 86, but given the fact that she was then also able to make her dependent visa application to the Immigration Department, and in the absence of any further or medical evidence to show how she might have been affected by her alleged medical issues that would have prevented her to file her Form 86 within the required period which was after all as many as 3 months, I am unable to declare being satisfied that there is indeed justification for her such serious delay.              

14.More importantly, nor am I satisfied that she has demonstrated any merits in her intended application to challenge the decision of the Board to allow her to withdraw her appeal at her own request and upon her written confirmation that she then fully understood the consequences of such withdrawal and that she had good reason to do so as she considered it safe for her to return to Indonesia.

15.As such it appears to me that her appeal had indeed been validly withdrawn that there is simply no proper basis for the Applicant to now seek to challenge the Board’s decision made at her own request, as the Court of Appeal so held in Re Das Purnima Rani [2019] HKCA 669 when Lisa Wong J elaborated at para 41 of the judgment of the Court:

“Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.”

16.In her Form 86 the Applicant claimed that she previously withdrew her appeal from the Board because she thought that her “problems were solved”, but that she was wrong and hence her life is still in danger in her home country, which she repeated again at the hearing of her application but without providing any further details or particulars as to why or how did she subsequently find out that she was wrong about her problems being solved, or for that matter how and why she initially thought that such problems had been solved to cause her to withdraw her appeal in the first place. As such and in the absence of any necessary and relevant information and evidence from the Applicant, I am unable to see any basis to suggest that the withdrawal of her appeal was in fact invalid.     

17.As for any possible challenge of the Director’s decision given the withdrawal of her appeal to the Board, even ignoring the fact that her delay would have been much more serious, I am unable to see any merits in any of those grounds put forward by her as stated above which are all just some broad and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case, or how the Director had erred in his decision, or what relevancy is State Acquiescence or extra-judicial killings to her claim, or in what way was she tortured by police or politicians when even on the factual basis of her own case that her claimed risk arose only from her private domestic dispute with her husband without any state or official involvement that the Director was in my judgment wholly correct to find that both state/police protection and internal relocation would be available to negate such a localized risk. In the circumstances I do not find any of these grounds reasonably arguable for her intended challenge, nor do I find any merits in her intended application regarding the Director’s decision 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 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, a decision also confirmed by the 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.                

20.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 her request to withdraw her appeal.

21.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review of either decision of the Director or the Board, 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 20^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