Siti Afani v. Torture Claims Appeal Board

HCAL 1687/2020

[2024] HKCFI 338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1687 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 / 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 17 September 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 38-year-old national of Indonesia who arrived in Hong Kong on 10 April 2012 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 15 June 2012, she did not depart and instead overstayed, and was arrested by police on 5 July 2012.  After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her father or his creditor over his outstanding debts, and was subsequently released on recognizance pending the determination of her torture claim.

2.The Applicant however failed to return her completed Torture Claim Form (“TCF”) as required by the Immigration Department, and also failed to report on her recognizance since 2 April 2013 and had disappeared, her torture claim was therefore treated as withdrawn on 1 March 2013.

3.More than 6 months later on 21 October 2013 she was arrested by police and was referred to the Immigration Department when she then sought non-refoulement protection on the same basis as her withdrawn torture claim, and was again released on recognizance pending determination of her non-refoulement claim.

4.On 28 October 2014 the Applicant was arrested again for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 15 months.

5.Upon her discharge from prison and was then released by the Immigration Department on recognizance pending the determination of her non-refoulement claim, the Applicant again failed to report on her recognizance since 5 July 2017, and was again arrested by police some 3 months later on 10 October 2017 and was referred to the Immigration Department to proceed with her claim.     

6.The Applicant was born and raised in Village Batu Merah, Sub-district Sirimau, Maluku Province, Indonesia.  After leaving school she worked as a housemaid in Singapore to make her living.

7.In 2010 she returned to her family home in Indonesia where her mother subsequently died from a stroke, and later her father married another woman with the help of a loan which he borrowed from a local money-lender.

8.One day in late 2011 the money-lender came to the Applicant’s home to demand her father to repay his loan, and when her father was unable to do so, his creditor was furious and demanded that her father should offer to marry the Applicant to him in lieu of the loan repayment which her father agreed, but when the Applicant refused, her father beat her and together with his creditor threatened to kill her if she still refused to do so.

9.After the incident the Applicant became fearful for her life and fled from her home to Jakarta where she applied to work in Hong Kong as a foreign domestic helper, which she eventually did on 10 April 2012 when she departed Indonesia for Hong Kong to start her employment.  

10.However, her last employment was terminated on 15 June 2012 but as the Applicant was afraid to return to Indonesia, she therefore overstayed in Hong Kong, and upon her arrest by the police she raised her torture claim, and after it was withdrawn she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 12 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

11.By a Notice of Decision dated 31 October 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”).

12.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of her being harmed or killed by her father 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 in particularly after all these years since she left the country in 2012 that it is not accepted that they would still have any adverse interest in her, 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 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 261 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 father or his creditor to locate her.

13.On 13 November 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 25 April 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 17 September 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

14.In its decision the Board accepted the Applicant’s claim of fear of harm from her father or his creditor over her father’s debts but found any such risk if real arose from what was essentially a private monetary or family 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 without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.    

15.On 20 August 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she rejects the decision for rejecting her claim and that the suggestion of relocation is not good enough but without providing any necessary or relevant details or elaboration as to how it is so.  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.

16.By then the Applicant was 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 day when grounds for the application first arose unless the court considers that there is good reason to extend the period within which the application shall be made.

17.As the last day of the three-month period for her to file her Form 86 fell on 17 December 2019, the Applicant was henceforth some 8 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.

18.In the Applicant’s case, a delay of  8 months must be considered as very 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 17 September 2019 to her then reported address without being returned through undelivered post, I am unable to see any good reason or justification for her such serious delay.

19.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, 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 merits in her intended application either.   

20.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.

21.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their decisions 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.                 

22.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.

23.Moreover, the Applicant recently on 22 November 2023 in writing requested to withdraw her application as her problem in her home country has been solved that she will not face any risk returning to Indonesia.  

24.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 now safe for her to return to her home country, I refuse to extend time and accordingly dismiss her leave application.

Dated the 30^th day of January 2024

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