Hanawati v. Torture Claims Appeal Board

HCAL 1003/2023

[2023] HKCFI 2170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1003 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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 2 March 2023 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 48-year-old national of Indonesia who last arrived in Hong Kong on 23 January 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 19 July 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 9 July 2021, she did not depart and inste4ad overstayed in Hong Kong, and was arrested by police almost 9 months later on 14 April 2022. 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’s creditor over their outstanding debts.

2.The Applicant was born and raised in Blitar, Indonesia. After leaving school she worked in the garment factory in her home district, married her husband and raised a family with a son.

3.In 2006 she went to Taiwan to work as a domestic helper for 6 years before returning to Indonesia, and later in 2017 she started coming to Hong Kong to work as a foreign domestic helper.

4.In June 2021 while working in Hong Kong, she received a phone call from her husband in Indonesia that he had borrowed a loan from a local money-lender for her mother’s medical expenses, that he had named her as the guarantor of the loan, and that he would need her to remit money to him to meet its monthly interest payments.

5.However, after her last employment had been terminated that she was no longer able to remit any money to her husband, and when his creditor started making threats against her and her husband over their outstanding debts, the Applicant was afraid to return to Indonesia and therefore 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 25 May 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 28 June 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 his 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 found no evidence of any real intention of her husband’s creditor to seriously harm or kill her other than to press her and her husband to repay the loan and due to the absence of or low intensity and frequency of past ill-treatment from them, that nothing has since happened to her husband who is still living in their home district safely and without harm, that in any event it was a private monetary dispute between them and their creditor 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 it would be difficult if not impossible for her husband’s creditor to locate her.

8.On 30 June 2022 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 21 February 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband’s creditor that caused her to fail to return to Indonesia and to overstay in Hong Kong, and that in any event even if her claimed risk is real that it arose from a private monetary dispute between her husband and his creditor without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.On 23 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 in which she just repeated her claim of fear of being killed by the creditor and without police protection but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.By then the Applicant was also 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.

12.As the last day of the 3 month-period for her to file her Form 86 fell on 2 June 2023, the Applicant was therefore some 3 weeks late with her application, 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.

13.In the Applicant’s case, a delay of 3 weeks must be considered as substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day to her then reported address without being returned through undelivered post, I am not satisfied that she has provided a good or valid reason for her serious delay.

14.As for the merits, if any, of her intended application, as noted above that the Applicant has failed to put forward any proper ground for her intended challenge. 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 or any merits in her intended application.

15.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.

16.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim if real 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 their consideration and assessment of the Applicant’s claim.

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 in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 23^rd 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