Lulu Wahyuni v. Torture Claims Appeal Board

HCAL 1906/2020

[2023] HKCFI 3095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1906 OF 2020

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 19 June 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 36-year-old national of Indonesia who last arrived in Hong Kong on 18 April 2011 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 18 April 2013 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 May 2012 and after her visa was extended to 18 May 2012, thereafter she did not depart and instead overstayed in Hong Kong, and was arrested by police almost 6 years later on 24 April 2018. 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 aunt for refusing to help her to pay off or settle her debts.

2.The Applicant was born and raised in Desa Setail, Genteng, Banyuwangi, East Java, Indonesia. After leaving school she worked as a part-time housemaid, and continued to live with her widowed mother in her home district.

3.In 2002 her mother was admitted into hospital for treatments of cancer, for which her aunt borrowed a loan from a local money-lender for the medical expenses, but her mother eventually succumbed to her cancer, whereupon her aunt moved in to live with the Applicant.

4.However, for the next several years her aunt demanded the Applicant to marry her creditor as settlement of the loan, and when the Applicant refused, her aunt would scold and threaten and even abuse her by slapping and punching her around, and on one occasion her aunt even forced her to meet her creditor in his house who then tried to rape the Applicant, but she managed to make her escape and ran back to her home. 

5.After the incident the Applicant became fearful for her safety, and so she fled from her home to take shelter in a friend’s place, and made arrangements to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did in late 2008 when she arrived in Hong Kong to start her first employment, returning to Indonesia only on holidays and by staying away from her aunt, but when her last employment contract was terminated in 2012, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and subsequently after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 December 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 7 January 2019 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”).

7.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 aunt upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from her aunt, that there is no evidence of any real intention of her aunt to seriously harm or kill her over such matter, that in any event it was a private personal dispute between the 2 of them within the family 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 262 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 aunt 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 20 January 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 19 June 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of threats from her aunt over their monetary dispute but found no evidence of any real intention of her aunt to seriously harm or kill her over their dispute or would still have any adverse interest in her all these years since she first left the country in 2008, and that in any event it was a private personal dispute between the 2 of them within the family 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 by her aunt that her claim for non-refoulement protection failed on all applicable grounds.

10.On 23 September 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her written submission dated 10 August 2021 she put forward the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to her home country;

(6) That the hearing bundle provided to the Applicant for her appeal hearing was without translations for the documents with the majority of which in English that there was insufficient time for her to prepare for her appeal due to her limited skill in English or the means to seek help for interpretation resulting in procedural unfairness to the Applicant.

11.By then the Applicant was however already 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 19 September 2020, the Applicant was therefore 4 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.

13.In the Applicant’s case, a delay of 4 days may not be considered as significant, for which she explained at the hearing of her application that being legally unrepresented that she did not know how to make her application until later when she was able to find help from her friends, but by then she was already out of time with her application.

14.The record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, and accepting that she needed assistance with her application and that her delay is not significant, I propose to focus on the prospect or merits of her intended application.

15.However, those grounds put forward by the Applicant as noted above are just some vague and bare assertions of the Applicant containing a few key words or phrases but without any 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 Board unlawfully fetter its discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational, or how did the Board fail to take into account of relevant COI or what source of news were not officially recognized or were simply hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge, nor do I find any merits in her intended application.

16.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.

17.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

18.Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she was assisted by an interpreter and that she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

19.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 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 her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.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.

21.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 I refuse to extend time and dismiss her leave application.

Dated the 30^th day of November 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