Masliah Imas v. Torture Claims Appeal Board

HCAL 1638/2021

[2024] HKCFI 428

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1638 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 7 September 2018 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 February 2010 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 14 May 2011 or within 14 days of its early termination, but when her employment was prematurely terminated on 14 March 2010, she did not depart and instead overstayed, and was arrested by police some 7 months later on 26 October 2010. 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 abusive husband, 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 Desa Cikahuripan, Cisolok, Sukabumi, West Java, Indonesia. After leaving school she married her husband and raised a family with a daughter in her home district.

3.However, soon she discovered that her husband was addicted to gambling, and was frequently in debts and was unable to provide sufficient financial support for the family, and whenever she asked for money for the family’s expenses, he would lose his temper and became violent and abusive towards her by yelling and slapping and hitting her at will.

4.To avoid further abuses from her husband and to help in supporting the family, the Applicant in 2004 started to come to Hong Kong to work as a foreign domestic helper and to remit money to her mother for taking care of her daughter but avoided any further contact with her husband.

5.However, after her last employment was prematurely terminated on 14 March 2010, as she was still afraid of being located by her husband if she were to return to Indonesia, she therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim to the Immigration Department, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 8 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 10 January 2017 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 found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her, that in any event they were private domestic disputes 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 258 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 husband to locate her.

8.On 19 January 2017 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 23 June 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 September 2018 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 domestic disputes with her husband during their marriage but found no evidence of any real intention of her husband to seriously harm her or of any real fear of her being harmed by him that would cause her to fail to return to her home country or to overstay in Hong Kong to seek protection, and that in any event it was a private marital dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

10.On 2 December 2021 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 to which she just attached a copy of the decision without putting 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 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.

11.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.

12.As the last day of the three-month period for her to file her Form 86 fell on 7 December 2018, the Applicant was henceforth almost 3 years 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 almost 3 years 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 Board’s decision was sent on the same day of 7 September 2018 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.

14.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 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 fact is that it has also been correctly established by the Director in his 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, 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.

17.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.

18.Moreover, the Applicant recently on 9 November 2023 filed an affirmation requesting to withdraw her application as her problem in her home country has been resolved and that she now wants to go home.

19.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 no more problem for her to return to her home country, I accordingly refuse to extend time and dismiss her leave application.

Dated the 16^th day of February 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