Sarwati v. Torture Claims Appeal Board

HCAL 3275/2019

[2025] HKCFI 215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 3275 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 Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Indonesia who last arrived in Hong Kong on 29 December 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 13 October 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 7 August 2009, she did not depart and instead overstayed, and was arrested by police on 7 May 2012 for which she was subsequently convicted and sentenced to prison for 3 weeks, and after her discharge from prison and was referred to the Immigration Department for deportation, 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 or his creditor for failing to repay his debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Cilalap, Central Java, Indonesia. After leaving school her father forced her to borrow a loan from some local money-lender for his gambling, and thereafter to help him to repay his debts by working as a domestic servant in Singapore in 2005 by sending money to her father to enable him to repay his debts by instalments.

3.In 2008 she started coming to Hong Kong to work as a foreign domestic helper and to continue to send money to her father in Indonesia to help repaid his debts, but after her last employment was prematurely terminated in August 2009, and when she was without income to remit money to Indonesia, both her father and his creditor had threatened to kill her when she returned to Indonesia, and so the Applicant was afraid to leave and instead overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 December 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 27 February 2017 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”).

5.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 father 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 to repay her father’s debts, that in any event it was a private monetary dispute between her father and his creditor 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 father or his creditor to locate her.

6.On 13 March 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 6 June 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 October 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

7.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 father or his creditor over her father’s debts that caused her to overstay in Hong Kong to seek protection, that even if her claimed fear were real that there was no reliable evidence of any real intention of her father or his creditor to seriously harm or kill her other than to press her to repay her father’s debts, and 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 that her claim for non-refoulement protection failed on all applicable grounds.

8.On 4 November 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim as the decision was not fair or reasonable as required by the Wednesbury test in failing to recognize that her life must be protected by the criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim without realizing that she was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take into account the Applicant’s personal background and experience in assessing her claim;

(4)  That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(5)  That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(6)  That the Adjudicator was procedurally improper and unfair when assessing whether or not to accept the Applicant’s explanations and unreasonably required her to respond to questions that she was not in a position to offer any response;

(7)  That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s country making the persecution of the Applicant effectively persecution by the State;

(8)  That the Adjudicator made a ruling to dismiss the Applicant’s appeal based on findings which the Adjudicator ought to allow and thus the decision was irrational.

9.By then the Applicant was however 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.

10.As the last day of the three-month period for her to file her Form 86 fell on 30 January 2019, the Applicant was therefore more than 9 months 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.

11.In the Applicant’s case, a delay of more than 9 months must be considered as very substantial and inordinate, for which she failed to provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 30 October 2018 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her such serious delay.

12.As for the merits, if any, of her intended application, those grounds put forward by the Applicant are all just some bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were state acquiescence or extra-judicial killings to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even her own case that it was a private monetary dispute between her father and his creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.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.

14.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim even 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.

15.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.

16.Moreover, the Applicant recently on 22 November 2024 filed an affirmation requesting to withdraw her application as all her problems have been solved that she now wants to return to her home country.

17.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 view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 21^st day of January 2025

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