Case Document

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HCAL 1261/2024

[2024] HKCFI 2567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1261 OF 2024

BETWEEN
	Yuyun Yuningsih	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 7 March 2024 be refused; and

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

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 10 September 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract, but when her last employment was prematurely terminated on 2 April 2022, she did not depart and instead overstayed, and was arrested by police on 6 June 2022. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her father and/or his creditor over her father’s unpaid debts and/or generally discriminated by the community for appearing masculine.

2.The Applicant was born and raised in Rantau Jaya Udik, Sukadana, Lampung Timur, Indonesia. After leaving school she worked as a domestic helper in Malaysia and Taiwan until 2013 when she returned to her home in Indonesia, during which she was informed by her father of his debts owed to a local money-lender, and for which he demanded that she should marry his creditor in settlement of his debts, and when she refused, her father became furious and threatened to kill her unless she did as he demanded.

3.To avoid her father’s threats the Applicant therefore made arrangements to leave the country to come to Hong Kong to work as a foreign domestic helper, which she did later in the same year of 2013, but as her father kept calling her on the phone demanding her either for money to repay his loan or to marry his creditor in settlement of his debts, and so the Applicant in 2020 started to inject male hormones to make herself to appear masculine in the hope of putting off her father’s desire to marry her to his creditor.

4.However, when her last employment was prematurely terminated on 2 April 2022, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon subsequent 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 20 July 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 28 September 2022 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”).

6.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 father or his creditor or of her being discriminated for her masculine appearance upon her return to Indonesia due to the absence of or low intensity and frequency of past ill-treatment from her father or his creditor or of any evidence of any real intention of either of them to seriously harm or kill her other than to press her for money to repay her father’s debts, that in any event it was a private monetary dispute between her father and his creditor only 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”) also show that reasonable internal relocation alternatives are available in Indonesia with a large population of 277 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, while there is no evidence of her being subjected to any discrimination due to her appearance, and that there are laws in Indonesia to protect women and minorities such as LGBTQ groups from discrimination or persecution and with support and assistance from various governmental departments and NGOs that it is not accepted that the Applicant would face any risk of discrimination or persecution for merely appearing masculine upon her return to Indonesia.

7.On 10 October 2022 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 24 January 2024 before the Board through remote official visit system from the Lo Wu Correctional Institution where she was being detained by the Immigration Department during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 March 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of fear of threats from her father and/or his creditor over their loan dispute but found no reliable evidence of any real intention of either of them to seriously harm or kill her other than to press her to help repay her father’s outstanding debts, that in any event it was a private monetary dispute between her father and his creditor only 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 by her father or his creditor, while her claim of fear of discrimination or persecution by the community in general for appearing masculine is not supported by any evidence of her ever been subjected to such ill-treatment or discrimination in the past, and that relevant COI also show that there are laws in Indonesia to protect her and people in similar situation including LGBTQ groups from discriminations and persecutions as well as support and assistance from various governmental departments and NGOs that the Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

9.On 1 August 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, while in her supporting affirmation of the same date she just repeated her claim as before and recited various relevant principles applicable to non-refoulement claims but without putting forth any proper ground for her intended challenge of the Board’s decision.

10.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.

11.As the last day of the three-month period for her to file her Form 86 fell on 7 June 2024, the Applicant was therefore some 8 weeks 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.

12.In the Applicant’s case, a delay of 8 weeks must be considered as substantial and inordinate, for which she explained at the hearing of her application that she was then being detained at Lo Wu Correctional Institution and without legal representation, and as she was not aware of the procedural deadline for the filing of her application until later when she was able to obtain help from the welfare officer stationed in her detention, but by then she was already out of time with her application.

13.The record shows that the decision was sent on the same day of 7 March 2024 to her then detention at Lo Wu Correctional Institution and without being returned through undelivered post, and with assistance from welfare officer stationed in her detention available to her and which she did receive such assistance with her application, while ignorance of the procedural rules can never be accepted as an justification for their non-compliance. In the circumstances I am unable to see any good or valid reason for the Applicant’s serious delay.

14.As for the merits, if any, of her intended application, as noted above that the Applicant also failed to put forth any proper ground for her intended challenge in her Form or affirmation, nor was she able to do so at the hearing of her application. 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.

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 Board rejected her claim for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 reasonably arguable basis to challenge the finding of the Board.

17.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decisions that the risk of harm from her father or his creditor in the Applicant’s 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.

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 serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 24^th day of September 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 24 September 2024 Yuyun Yuningsih Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21036 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 679/22 (Formerly RBCZ 5000586/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)