Jarmiati and Another v. Torture Claims Appeal Board

HCAL 2702/2019

[2024] HKCFI 1293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2702 OF 2019

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 1st Applicant in open court and the 2nd Applicant being excused (“the Applicants”);

Order by Deputy High Court Judge Bruno Chan:

1.  Extension of time for the Applicants’ application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 December 2018 be refused; and

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

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 39-year-old national of Indonesia who last arrived in Hong Kong on 9 August 2007 as a visitor with permission to remain as such up to 8 September 2007 when she did not depart and instead overstayed, during which she formed a relationship with a Pakistani man with Christian faith, and on 5 March 2009 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 family for failing to marry a Muslim man as arranged by her family and instead formed a relationship with a Pakistani man of Christian faith and for subsequently converting her Islamic religion to Christianity and/or by the Muslim community for doing so, and upon giving birth to a daughter, the 2^nd Applicant (“A2”) on 15 May 2010 out of her relationship with the Pakistani man, she also raised a torture claim for A2, and after their torture claims were rejected, they then jointly sought non-refoulement protection on the same bases. They were subsequently released on recognizance pending the determination of their claims.

2.A1 was born and raised as a Muslim in Des Sumber Tempur, Njengglong, Malang, Jawa Timur, Indonesia. After leaving school she worked as a domestic servant in her home district before coming to Hong Kong in 2003 to work as a foreign domestic helper.

3.Upon completing her employment contract in July 2005, she did not depart and instead overstayed, and was subsequently arrested and deported back to Indonesia in April 2006.

4.Upon returning to her home village, A1 was informed by her parents that they had arranged for her to marry their friend’s son Ahmad, and with whom she then became engaged and moved into his home in Surabaya, but she soon discovered that Ahmad was an alcoholic and would become abusive towards her when drunk by pushing and slapping her around, and when she complained to her parents, they insisted that she should put up with it as his family were wealthy and that she should proceed to marry him.

5.After about 1 ½ months A1 could no longer tolerate Ahmad’s abuses and therefore ran away from his home into hiding, for which both Ahmad and her parents were furious and demanded for her to return to marry him or else they would kill her, and so A1 on 9 August 2007 departed Indonesia for Hong Kong where she subsequently overstayed, during which she met and formed a relationship with her Pakistani boyfriend who was a Christian and also a non-refoulement claimant, and under his influence she then converted her religion from Islam to Christianity, but when she later informed her parents thereof, they accused her of bringing shame to the family and threatened to kill her when she returned to Indonesia, and warned her that the Muslim community would do the same to her for abandoning Islam.

6.Fearing for her life A1 therefore surrendered to the Immigration Department and raised her torture claim, and upon subsequently given birth to A2 out of her relationship with her Pakistani boyfriend she also arranged for her to be baptized as a Christian and raised a torture claim for her on the same bases, and after their torture claims were rejected, they then jointly sought non-refoulement protection, for which A1 completed a Supplementary Claim Form (“SCF”) for their non-refoulement claims on 22 January 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 27 February 2018 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the remaining applicable grounds other than Torture Risk including risk of their 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 Applicants’ claim and found no substantial grounds for believing that they will be in any real and substantial risk of them being harmed or killed by A1’s parents or the local Muslim community or Ahmad upon their return to Indonesia 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 any of them to seriously harm or kill either of them, that in any event these were private personal disputes between A1 and her family without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws and policies of the Indonesian government to guarantee and safeguard freedom of religions and to protect single parents and illegitimate children from discriminations and persecutions and with supports and assistances from various NGOs, and that reasonable internal relocation alternatives are also available to negate such risks in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.9 millions square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other areas of the country away from her home district in large cities such as Jakarta or East Nusa Tenggara Province where Christianity is the dominant religion of its population and where it would be difficult if not impossible for anyone to locate them.

9.On 12 March 2018 the Applicants lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which they attended an oral hearing on 1 November 2018 before the Board during which A1 gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 7 December 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicants’ claims of fear of harm from A1’s parents or Ahmad or the local Muslim community over her relationship with her Pakistan boyfriend or due to their Christian faith but found no reliable evidence of any real intention of her family to harm or kill them or any real risk of any harm from Ahmad or the Muslim community, and that relevant COI show that Indonesian Constitution guarantees freedom of religion including Christianity which is growing amongst the population and with religious pluralism and toleration in the modern days of Indonesia that there is no evidence or indication of any fear of harm from religious conversions including from Islam to other religions amongst the Muslims that it is not accepted that such risk is real or imminent to the Applicants upon their return to Indonesia, that in any event these were private personal disputes between A1 and her family without any official involvement that state or police protection would be available to the Applicants as well as supports and assistances from government departments and various NGOs for A1 as a single parent and A2 as an illegitimate child, while reasonable internal relocation alternatives are also available for them to move safely to other parts of the country away from A1’s home district without any risk of being located that their claims for non-refoulement protection failed on all the applicable grounds.

11.On 16 September 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form or A1’s supporting affirmation of the same date in which she just stated that she rejects the decision as it disregarded their dangerous situation but without any explanation as to how it did so, nor did she put forward any proper ground for their intended challenge.

12.By then the Applicants were also out of time with their 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.

13.As the last day of the three-month period for them to file their Form 86 fell on 7 March 2019, the Applicants were therefore some 6 months late with their 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 Applicants’ case, a delay of 6 months must be considered as very substantial and inordinate, for which A1 explained at the hearing of their application that they were without legal representation and did not know how to proceed with it until later when she reported on their recognizance to the Immigration Department and was advised how to do so that they eventually managed to prepare and file their Form 86 in September 2019 when they were already out of time.

15.The record shows that the Board’s decision was sent on the same day of 7 December 2018 to their then reported address which was the same as stated in their Form 86 without being returned through undelivered post, and while it is accepted that they were without legal representation and would require assistance with their application, as ignorance of the law can never be accepted as a valid reason or justification for failing to comply with the procedural rules, I am unable to see any good or valid reason for their such serious delay.

16.As for the merits, if any, of their intended application, as noted above that the Applicants also failed to put forth any proper ground for their intended challenge in their Form or affirmation, nor was A1 able to do so at the hearing of their application. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge either.

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 Applicants’ case, the Board rejected their claims for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 63 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

19.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risks of harm in their claims if real are localized ones and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

20.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 Applicants’ claim.

21.I am of course mindful of the fact that A2 is a minor at her present age of 14 years old was without legal representation in her appeal to the Board or in her present leave application before the Court as required by Order 80 rule 2 of the Rules of the High Court, Cap 4A after her mother’s application for Legal Aid for her upon the Court’s advice was unsuccessful, and hence it would be necessary to separately consider and examine whether A2’s claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases but which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

22.In the present case with A2, having subjected the Board’s decision to rigorous examination and anxious scrutiny, I am satisfied that the Board did do so in its consideration and determination of her non-refoulement claim separately from her mother’s and specifically to her own personal circumstances as an illegitimate child of Christian faith (see [47] – [53] & [58] – [62] of the decision) and by having taken account and consideration of the relevant COI specific to her circumstances in Indonesia. As such, and in the absence of any argument or submissions from her mother to the contrary, I do not find any underlying matter which might support A2’s minor-specific non-refoulement basis or ground that had not been advanced before the Board due to lack of legal representation for her in her appeal to the Board, or for that matter in these proceedings and for which I shall treat the absence of legal representation for her as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review (see Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, as discussed in [57] of Fabio Arlyn Timogan).

23.In the premises, as I am for all the given reasons not satisfied that there is any prospect of success in the intended application for judicial review of either A1 or A2, and in the absence of any good reason for their serious delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 14^th day of May 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