Case Document

100%Judiciary

HCAL 549/2020

[2023] HKCFI 2824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 549 OF 2020

BETWEEN
	Sukanti Bt Tasa Surnata	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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;

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 January 2020 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Indonesia who last arrived in Hong Kong on 19 February 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 December 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 March 2014, she did not depart and instead overstayed, and was arrested by police more than 1 year later on 18 July 2015. 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 creditors over her outstanding debts and/or her husband for failing to send him money for his use. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Jambe, Kerta Semaya, Indramayu, West Java, Indonesia. After leaving school she married her former husband and raised a family with 2 children in her home village.

3.After her former husband had passed away, the Applicant subsequently married her present husband who was however frequently out of work, and so the Applicant in 2008 went to Saudi Arabia to work as a domestic helper to support the family, and in 2011 she started coming to Hong Kong to work as a foreign domestic helper and to remit her monthly salary to her husband in Indonesia for the support of the family.

4.In 2013 while working in Hong Kong, the Applicant was told by her mother on the phone from Indonesia that her father had fallen seriously ill in hospital, and for which her mother had borrowed a loan from a local money-lender with the Applicant being named as the guarantor, but as the loan was not enough to cover her father’s hospital expenses, her mother asked the Applicant for financial contribution, and for which the Applicant had to borrow a loan from an Indonesian finance company at the Hong Kong Branch Office but gave her address in Indonesia for the loan which was to be repaid within 6 months.

5.However, her mother was soon unable to repay her loan, and the money-lender started to send men to her mother’s home to threaten her mother as well as the Applicant as the loan guarantor, while the Applicant was also unable to repay her loan after her last employment was terminated in March 2014, for which her creditor also sent debts-collector to her home in Indonesia looking for her with death threats, and when she was unable to send home any money, her husband also threatened to kill her.

6.Given all these threats against her, the Applicant was therefore afraid to return to Indonesia, and so she 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 30 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 28 September 2018 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband or creditors upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her for money or to repay her debts, that in any even these were 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 1.9 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 anyone to locate her.

9.On 11 October 2018 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 4 December 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 January 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted her claim of fear of harm from her creditors or husband that caused her to overstay in Hong Kong to seek protection, and that in any event these were private monetary or relationship disputes 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.

11.On 8 April 2020 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 was she able to do so at the hearing of her application.

12.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.

13.As the last day of the 3 month-period for her to file her Form 86 fell on 2 April 2020, the Applicant was therefore 6 days 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.

14.In the Applicant’s case, a delay of 6 days may not be considered as significant, for which she explained at the hearing of her application that she never received the decision in the mail, and that it was only later when she reported on her recognize that she was so informed by her immigration officer, but by then she was already out of time with her application.

15.The record shows that the decision was sent on the same day of 2 January 2020 to the Applicant’s last reported address without being returned through undelivered post, and in the absence of any details or evidence to corroborate her bare assertions, I am not satisfied that she has provided any good or valid reason for her delay, but given the relatively insignificance of her delay, I propose to focus on the prospect or merits of her intended application.

16.However, as noted above that the Applicant has also failed to put forward any proper ground 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 reasonably arguable basis for her intended challenge or any merits in her intended application.

17.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.

18.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 risks of harm in her claim if real are localized ones 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.

19.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.

20.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 delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 2^nd day of November 2023

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 2 November 2023 Sukanti Bt Tasa Surnata Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 2 November 2023 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 13902/18/10/244/I1511 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3223/18 (formerly RBCZ 12320/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)