Fenny Indriana v. Torture Claims Appeal Board

HCAL 619/2023

[2023] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 619 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 25 November 2022 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 50-year-old national of Indonesia who last arrived in Hong Kong on 6 January 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 May 2009 or within 14 days of its early termination, but when her employment was prematurely terminated on 31 May 2008, she did not depart and instead overstayed in Hong Kong, and more than 3 years later on 30 August 2011 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband and/or his creditor for failing to repay her husband’s debts, and after her torture claim was rejected, 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 Semboro, Gang Puri Aqung, Jember, Jawa Timur, Indonesia.  After leaving school she married her husband, and raised a family with 2 children in her home district.

3.Soon the Applicant discovered that her husband was lazy and was often without any secured job, and that on one occasion he was arrested by police for stealing money from his employer and was sent to prison, and upon his release and returned home, he would be abusive towards the Applicant that by end of 1999 she was unable to tolerate living with him anymore that she brought their children to return to her parents’ home.

4.In order to support her children, the Applicant in 2000 went to work in Singapore as a domestic helper, and upon the completion of her employment contract in 2002, she returned to her parents’ home in Indonesia when one day a man came to the house claiming to be a loan shark and looking for her husband whom he claimed to owe him money, and that as his wife the Applicant should repay the money on his behalf, and when the Applicant was unable to do so, the loan shark threatened that he would kill her if next time when he returned that she was still unable to pay.      

5.Fearing for her life, the Applicant fled to Malang to take shelter in a relative’s place, but when her husband later contacted her on the phone to threaten to kill her if she failed to repay his debts, and that the loan shark was also looking for her everywhere, the Applicant felt it was no longer safe to remain in Indonesia, and so she made arrangements to come to Hong Kong to work as a foreign domestic helper, which she did in May 2005, but when her last employment was terminated on 31 May 2008, she did not depart and instead overstayed and subsequently raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement for protection, for which she completed a Supplementary Claim Form (“SCF”) on 10 January 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 February 2022 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”).

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 and/or his creditor upon her return to Indonesia as low 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 other than to try to get money from her, that in any event these were just private monetary disputes 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 260 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 anyone to locate her.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 28 September 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 November 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her husband or his creditor that caused her to overstay in Hong Kong to seek protection, that there is no evidence of any real intention of either of them to harm her let alone to kill her over her husband’s own debts, nor is it accepted that they would still have any adverse interest in her after all these years since she left the country in 2005, or that they would have the means or ability to locate her should she return to Indonesia to move 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 27 April 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Adjudicator did not consider the Applicant’s claim properly and just dismiss it without taking time to consider her situation;

(2) That the Adjudicator refused to consider documents submitted by the Adjudicator because they were in Indonesian without translation or to allow time for the Applicant to obtain their translations;

(3) That the interpreter at the hearing was unhelpful to the Applicant by rushing her evidence and was generally impatient with her during the hearing.  

11.By then the Applicant was however 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 25 February 2023, the Applicant was therefore some 2 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.

13.In the Applicant’s case, a delay of 2 months 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 of 25 November 2022 to her last reported address without being returned through undelivered post, I am unable to see any good or valid reason for her serious delay.    

14.As for the merits, if any, of her intended application, those grounds put forward by the Applicant as noted above are all just broad and vague assertions of her without the necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take proper consideration of her claim, or what documents that she was not allowed to submit for her appeal which even up to now that the Applicant has failed to provide any details or particulars of such documents, while her complaints about the interpreter for her appeal hearing are just some bare and vague assertions uncorroborated with any relevant details. As none of these assertions were elaborated or presented by any particulars or specifics that I do not find any of them reasonably arguable for her intended challenge, 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 merits in her intended application either.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 42 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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.  

17.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 if real 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.                

18.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.

19.Moreover, the Applicant recently on 28 August 2023 wrote to request to withdraw her application as she now wants to return to her home country as soon as possible.

20.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 of her wish to return to her home country as soon as possible, 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