Ivin Dwi Lestari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2018/2019

[2024] HKCFI 2594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2018 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”) on BOR 2 risk. Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expires on 1 March 2019. Her application was filed on 16 July 2019, which is late for about 4.5 months. This issue will be dealt with below.

2.Although the applicant did not apply for leave for judicial review of the Board’s 1^st Decision dated 25 May 2017 on Torture risk, BOR 3 risk and Persecution risk, since the facts in support of the BOR 2 risk are the same, the Court will consider the Board’s 1^st Decision as well.

3.The applicant requested an oral hearing. She appeared before the Court on 16 September 2024.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

5.The applicant, aged 34, is an Indonesian. She arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 16 July 2011. Her employment contract was prematurely terminated on 22 January 2013 and she overstayed since 6 February 2013. The applicant surrendered to the Immigration Department on 24 November 2014 and she made a non-refoulement claim on 29 December 2014. The claim was made on the basis that, if refouled, she would be harmed or even killed by her family because she converted from Islam to Christianity and she became pregnant out of wedlock. She also feared that her fiancée would do something bad to her family.

6.According to the applicant, her family were devoted Muslims. In 2008, the applicant’s family arranged her to marry her fiancée against her will. In order to avoid the marriage, the applicant relocated away from her hometown from January 2008 to March 2010 and she eventually came to Hong Kong to work as a FDH in July 2011. While she was in Hong Kong, she converted from a Muslim into a Christian. Shortly thereafter, the applicant met an African man and she became pregnant to him in November 2014. When the applicant informed her mother that she became pregnant out of wedlock, her mother told her that she had humiliated the whole family and that she would be beaten up upon return to Indonesia. In the meantime, the applicant also worried that her fiancée would do something bad to her family because of what she had done.

7.The applicant had never sought assistance from the authorities because she was already in Hong Kong. In any event, she believed that the law in Indonesia only protects people with money. Meanwhile, she also considered internal relocation not viable.

8.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 July 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the claimed ill-treatment from her family due to her conversion from Islam to Christianity and her pregnancy out of wedlock was a bare assertion [13]; (ii) it was her mere speculation that her fiancée would do something bad to her family because of what she had done [14]; (iii) state protection would be available [15]; (iv) internal relocation would be viable [16] and (v) the applicant’s case failed to meet any of the requirements under BOR 3 risk [17]-[19], Persecution risk [20]-[23] or Torture risk [24]-[26].

11.In the Notice of Further Decision dated 14 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decisions

12.The applicant appealed the Director’s 2^nd Decision to the Board. The Board considered that there would be no procedural unfairness to the applicant without a hearing and the case was therefore proceeded on such basis [33].

13.The Board first considered the Director’s 1^st Decision.

14.The Board noted from the country of origin information that the applicant could seek assistance from the police or other non-government organisations if necessary. Furthermore, the Indonesian Constitution also guarantees freedom of religion [37], [39], [42]-[43].

15.In any event, there was no evidence of state involvement in the matter and the only threat the applicant received was from her mother when she learnt about her pregnancy, which was far from the requisite level of severity. Based on such findings, the Board concluded the applicant’s case failed to meet any of the requirements under Torture risk, BOR 3 risk or Persecution risk [22]-[31], [40]-[41], [44]-[49], [52]-[54]. Furthermore, state protection and internal relocation would also be available [50]-[51], [55]-[56].

16.The Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

17.In respect of the Director’s 2^nd Decision, again, the Board found BOR 2 risk had no relevance to the matters complained of by the applicant and there was no evidence that she would face BOR 2 risk upon return to Indonesia [10]-[11].

18.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

Application for leave to apply for judicial review of the Board’s Decision

19.The applicant has filed Form 86 dated 16 July 2019 for leave to apply for judicial review of the Board’s Decision.

20.In the affirmation in support of her application, the applicant says she rejects the Board’s Decision as the Board disregarded her dangerous situation.

DISCUSSION

21.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

22.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not take into account the fact that she had a child out of wedlock, her husband is a Christian and her family is Muslim, all of which she had set out in her statement to the Director.

24.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

25.It is obvious that the Board had taken on board her personal situations when it assessed her claim in the appeal, though no hearing was conducted.

26.The applicant has failed to raise any valid ground to challenge the Board’s Decisions. In my view, the Board’s Decisions are reasonable and the Court has no reason to interfere with them.

27.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

28.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss her application.

The applicant appeared in person.