Erika Purwanti v. Torture Claims Appeal Board

HCAL 918/2023

[2023] HKCFI 2134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 918 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 41-year-old national of Indonesia who last arrived in Hong Kong on 30 September 2012 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 21 March 2014 when she did not depart and instead overstayed, and was arrested by police almost 8 years later on 4 January 2022 for undertaking unauthorized employment in breach of her condition of stay, for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her former boyfriend for failing to give him money for his use.  

2.The Applicant was born and raised in Desa Sari Mulyo, Kel Wotan, Kec Sukolilo, Central Java. Indonesia. After leaving school she worked in the factory, and started cohabitation with her boyfriend Budi who was a farmer from her home district.

3.Soon the Applicant discovered that her boyfriend frequently indulged in drinking alcohol and demanded money from her for his use, and when she was unable to do so, he would be abusive and violent towards her by beating her at will.

4.In order to satisfy her boyfriend’s financial demands, the Applicant in November 2003 went to Taiwan to work as a domestic servant and to remit money to her boyfriend for his use until February 2004 when she started coming to Hong Kong to work as a foreign domestic helper, and in March 2004 she demanded to break up her relationship with her boyfriend, he became furious and threatened to kill her if she stopped sending him money for his use, and so when her last employment expired in March 2014, she was afraid to return to Indonesia, and so she overstayed in Hong Kong, and after her arrest by the police in January 2022, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 2 March 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 23 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”).

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 former boyfriend 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 Budi to seriously harm or kill her other than to press her for money for his use, that in any event it was a private domestic or monetary dispute between the 2 of them without the absence of 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 1.8 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 it would be difficult if not impossible for her former boyfriend to locate her.

7.On 18 January 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as she did not attach a copy of the said decision to her Notice of Appeal as required by Section 37ZS (2)(b) of the Immigration Ordinance, and so it was returned to her to do so, which she did and re-submitted to the Board on 30 January 2023, but as either of her Notice of Appeal was lodged outside the 14-day period required under Section 37ZS (1) of the Ordinance, and in pursuance of Section 37ZT (2) the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of her Notice of Appeal.

8.In her application for the late filing of her Notice of Appeal, the Applicant stated in section 5 of the Notice as follows:

“I decided to file an appeal petition once again because the appeal form that I previously had submitted when I was still in Lowu in June/July, had been sent to/received by Wan Chai Appeal Board Non-Refoulement Office.”

9.In section 2 of her Notice of Appeal for her grounds of appeal, the Applicant just repeated her claim of fear of harm from her former boyfriend Budi that she cannot return to her home country.

10.By a Decision dated 2 May 2023 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that the Director’s decision was properly served on her via her lawyer from DLS on 23 May 2022, that the deadline for her to file her Notice of Appeal was 8 June 2022, that it was more than 7 months late when it was received by the Board either on 18 January 2023 or on 30 January 2023, that her stated reason of having previously sent the Notice of Appeal from her imprisonment in Lo Wu Correctional Service in June/July was not credible upon written confirmation from the Commissioner of Correctional Services that there is no such record found in relation to her having allegedly in June or July 2022 given any appeal papers to officers of the Department in Lo Wu or otherwise for posting to the Board. and that there was no evidence adduced by the Applicant that she had exercised due diligence to file her Notice of Appeal within the required period after taking account of her statement of reasons stated in her Notice of Appeal under Section 37ZT (2) of the Ordinance (as amended on 1 August 2021).

11.On 12 June 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 forward any proper grounds 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.

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 20 – 22 of its decision after taking proper account of her statement of reasons and making its own enquiry with the Commissioner of the Correctional Services as to her assertions stated therein. As such and in the absence of any error of law 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.

14.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 him 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 the Director’s consideration and assessment of the Applicant’s non-refoulement claim or in the Board’s determination of her application for 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 accordingly refuse her leave application.

Dated the 18^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