Anik Rakhmawati v. Torture Claims Appeal Board

HCAL 614/2021

[2023] HKCFI 2738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 614 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
	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 4 April 2019 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 44-year-old national of Indonesia who arrived in Hong Kong on 11 November 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 15 July 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 1 May 2011, and upon the expiration of her visa as extended on 10 June 2011, she did not depart and instead overstayed, and was arrested by police some 5 months later on 16 November 2011 for possession of identity cards of other persons for which she was subsequently convicted and sentenced to prison for 12 months, during which she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by the creditor of her mother over her mother’s unpaid debts, and after it was rejected by the Immigration Department, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Klojen, Malang, Indonesia. After leaving school she worked as a baby-sitter and continued to reside with her widowed mother in their family home.

3.In 2003 her mother borrowed a loan from a local money-lender for medical expenses, but after the subsequent passing of her mother without paying off the loan, her mother’s creditor started to come to the Applicant’s home to demand for repayment of her mother’s loan, and when the Applicant was unable to do so, the creditor threatened to kill her next time if she still failed to repay her mother’s debts. 

4.As a result the Applicant became fearful for her safety, and fled to Jakarta in 2004 where she worked as a domestic helper for the next 6 years without incidents, but as she still feared of being located by her mother’s creditor, she therefore departed Indonesia in November 2010 for Hong Kong to work as a foreign domestic helper, but after her last employment was terminated, she did not depart and instead overstayed, and upon her subsequent arrest by the police she raised her torture claim, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 27 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 20 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 mother’s creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any intention of the creditor to harm the Applicant other than to press her to repay her mother’s debts, that in any event it was a private monetary dispute between the 2 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 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 mother’s creditor to locate her.

7.On 28 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing without explanation, nor did she subsequently respond to the Board’s written request for her explanation or whether she would require another oral hearing. In the absence of any response from the Applicant, the Board proceeded to deal with her appeal in her absence and on papers. On 4 April 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of threats from her mother’s creditor over her mother’s unpaid debts but found no evidence of any real intention of the creditor to seriously harm or kill the Applicant, and that in any event it was a private monetary dispute between them 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.    

9.On 3 May 2021 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 stated that the decision is not fair but without providing any details or particulars or elaboration as to how it is so.

10.By then the Applicant was however also seriously 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 fell on 4 July 2019, the Applicant was therefore more than 1 year 9 months 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.

12.In the Applicant’s case, a delay of more than 1 year 9 months must be considered as extremely 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 of 4 April 2019 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.    

13.As for the merits, if any, of her intended application, as noted above that the Applicant has also 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 appeal to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

14.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.

15.In the Applicant’s case, the fact is that it has been 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.                

16.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.

17.Moreover, the Applicant recently on 28 August 2023 wrote to “close” her case as her problem is already “finish” and that it is now safe for her to return to her home country. 

18.In the premises, as I am for the given reasons 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, and given her latest confirmation that it is safe for her to return to her home country, I refuse to extend time and accordingly dismiss her leave application.

Dated the 25^th day of October 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