Kustini Sumiati v. Torture Claims Appeal Board
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HCAL 457/2024 [2024] HKCFI 1308 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 457 OF 2024
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Bruno Chan:
Observations for the Applicant: 1.The Applicant is a 45-year-old national of Indonesia who last arrived in Hong Kong on 17 June 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 17 June 2021 or within 14 days of its early termination, but when it was prematurely terminated on 27 November 2020, she did not depart and instead overstayed, and was arrested by police more than 2 years later on 26 January 2023 for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband over their domestic disputes and/or by his creditors for failing to repay his debts. 2.The Applicant was born and raised in Cikarang, Bekasi, West Java, Indonesia. After leaving school she worked as a domestic servant in Singapore before coming to Hong Kong in 2008 to work as a foreign domestic helper to make her living. 3.In 2013 she returned to Indonesia and subsequently married her husband and raised their family with a son in her husband’s home district in Cikalong, Desa Sidareja, Kecamatan Sidareja, Kabupaten Cilacap, Jawa Tengah. 4.During the marriage the Applicant discovered that her husband was addicted to heroin and cocaine, and would behave abusively and violently towards her by punching and kicking her when she tried to plead with him to stop taking drugs. 5.In 2016 some men came to their home looking for her husband claiming that he owed them money, and when they could not find him at home, they turned to the Applicant and demanded that she should repay her husband’s debts, and when she was unable to do so, they agreed to give her some time to get the money but warned that she would be killed if next time she still failed to repay her husband’s debts. 6.As she became fearful for her life, and to avoid her husband’s abuses, the Applicant made arrangements to leave the country to return to Hong Kong to work as a foreign domestic helper, which she did on 17 June 2019, but when her last employment contract was prematurely terminated on 27 November 2020, she was afraid to return to Indonesia and so she overstayed in Hong Kong, and upon her subsequent arrest by the police and was convicted and sentenced to prison, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 April 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 7.By a Notice of Decision dated 15 June 2023 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 assessed the level of risk of harm from her husband or his creditor upon her return to Indonesia as low due to the 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 other than to press her for money, that in any event these were private domestic or monetary disputes between 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 270 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 Surabaya or Semarang where it would be difficult if not impossible for anyone to locate her. 9.On 27 June 2023 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 29 November 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 December 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision. 10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband or his creditors that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until more than 2 years later and only after her arrest by the police and her subsequent conviction and imprisonment, that even if her claimed risks were real that there was no reliable evidence of any real intention of her husband or his creditors to seriously harm or kill her, and that in any event these were private domestic or monetary 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 alternatives for her to move safely to other parts 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 12 March 2024 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 her supporting affirmation of the same date in which she just repeated as before that she needs to stay in Hong Kong as her life is in danger in her home country but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for 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 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 the Applicant to file her Form 86 fell on 5 March 2024, the Applicant was therefore 7 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 7 days in her situation and without legal representation may not be considered as significant, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 5 December 2023 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her delay, but given its relatively insignificance, I propose to focus on the merits, if any, of her intended application. 15.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 merits in her intended application either. 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.In the Applicant’s case, 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 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 enkins & Anor [2013] 1 HKC 526. 18.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. 19.For all 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 16th 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
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