Fifia Ningrum v. Torture Claims Appeal Board

HCAL 675/2023

[2023] HKCFI 2082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 675 OF 2023

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 / 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 28-year-old national of Indonesia who last arrived in Hong Kong on 22 April 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 22 April 2022 or within 14 days of its early termination, but her employment was terminated on 6 July 2021 after she was arrested by police for theft for which she was subsequently convicted and sentenced to prison for 4 weeks, and upon her discharge and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father and/or his creditor for refusing to marry his creditor in settlement of his debts.

2.The Applicant was born and raised in Rejo Mulyo, Lampung, Indonesia. After leaving school she went to Taiwan to work as a domestic helper until 2017 when she returned to her parents’ home in Indonesia.

3.One day in August 2017 she was told by her father of his debts to a local money-lender which he was unable to repay, and that he wanted her to marry his creditor in settlement of his debts, and when she refused, her father became furious and beat her almost every other day, and so in April 2019 she fled to Jakarta to apply to work as a foreign domestic helper in Hong Kong so that she could leave the country to avoid further threats and beatings from her father.

4.While she was undergoing training in Jakarta, her father’s creditor also made threatening phone calls to her demanding her to settle her father’s debts or else to marry him as settlement of her father’s debts which caused further fear in the Applicant.

5.Eventually the Applicant departed Indonesia on 22 April 2020 for Hong Kong to start her employment, but after it was terminated in July 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 9 August 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 5 October 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and did not accept that her father or his creditor have any real intention to seriously harm or kill her upon her return to Indonesia 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 seriously harm or kill her or that there would still be any adverse interest in her all these years since she left her parents’ home and later the country, that in any event it was a private family or monetary 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 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 areas of the country away from her home district in large cities such as Jakarta where she had stayed before without incidents and where it would be difficult if not impossible for her father or his creditor to locate her.

8.On 17 November 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as her Notice of Appeal was filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, the Applicant in section 5 of her Notice included an application for its late filing and a statement of the reasons required under Section 37ZT (1) of the Ordinance as follows:

“It’s because of my current situation of being imprisoned at Lo Wu Correctional Institution. (I) needed approximately 1 month to purchase the stamp and envelope as I had to make a request in advance. And only then would I receive or obtain what I need. I hope sir/Madam will be able to understand my current situation at the prison, i.e., Lo Wu Correctional Institution. I hereby extend my gratitude.”

9.In her Notice of Appeal, the Applicant also stated her then address at Lo Wu Correctional Institution, and in section 2 for her grounds of appeal, she repeated her claim as before of fear of harm from her father or his creditor for refusing to marry his creditor in settlement of her father’s debts.

10.In pursuance of Section 37ZT (2) of the Ordinance (as amended on 1 August 2021), 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 under subsection (3) which provides as follows:

“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.”

11.By a Decision dated 23 March 2023 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon accepting that the Applicant had been in prison since her criminal conviction in July 2022, but found that the deadline for her to file her Notice of Appeal at 21 October 2022 but that she did not do so until some 27 days later on 17 November 2022, that her explanation of requiring 1 month to purchase the stamp and envelope for sending her Notice of Appeal to the Board was not acceptable as it was contradicted by the written confirmation of the Commissioner of Correctional Service Department (“CCSD”) that the relevant prison rules allow a Person-in-Custody (“PIC”) to send one letter per week at public expense, and to send more in case of genuine need, and that stamps and envelopes can also be purchased by using the PIC’s earnings twice a month, and given that the Applicant had been in prison since July 2022 that she should have had ample time and sufficient earnings by October 2022 to purchase the necessary stamps, papers and envelopes as well as with the assistance of social officers within the prison to prepare and file her Notice of Appeal within the required time, but that she did not make any purchases until November 2022 without good or acceptable reasons, and concluded that it was not satisfied that the Applicant had exercised all due diligence to file her Notice of Appeal within the required period or that it was due to circumstances beyond her control that she had failed to do so.

12.On 9 May 2023 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 to which she just attached a copy of the decision but without putting forth 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 her process before the Board or in its 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 seriously late filing of her Notice of Appeal for the thorough and detailed analysis and reasoning set out in paragraphs 4 – 11 of its decision upon taking into account of the statement of reasons stated in her application for late filing and the evidence relied on in support of her reasons under Section 37ZT(2) of the Ordinance as amended on 1 August 2021, and that it had also undertaken proper enquiries with the CCSD to ensure that the Applicant had not been unnecessarily restricted or affected while being in prison during the relevant period which might otherwise amount to circumstances beyond her control to file her Notice of Appeal within the required period, and was in my judgment entitled to and was correct to find that the Applicant had failed to provide sufficient evidence to satisfy the Board that she had exercised all due diligence to file her Notice of Appeal within the required period but was unable to do so due to circumstances beyond her control.

15.As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.Furthermore, the fact is that it has also been 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.

17.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 non-refoulement claim or in the Board’s decision to refuse the late filing of her Notice of Appeal.

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

Dated the 11^th day of August 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