Ewis Darlia v. Torture Claims Appeal Board

HCAL 1878/2023

[2025] HKCFI 1187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1878 OF 2023

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 March 2023 be refused; and

2.  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 in June 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated on 8 June 2022 after she was arrested by police for theft and for which she was subsequently convicted and sentenced to prison for 6 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 marital and monetary disputes.

2.The Applicant was born and raised in Village Sukacinta, Muara Kuamg, Ogan Ilir, South Sumatra, Indonesia. After leaving school she married her husband and raised a family with a son in her home district.

3.During their marriage the Applicant soon found her husband to be violent and abusive towards her by slapping and punching her at will, and in order to get away from his abuses the Applicant in 2010 applied to work in Hong Kong as a foreign domestic helper, which she did in March 2010 when she arrived in Hong Kong to start her employment, returning to her home in Indonesia only for holidays.

4.During one such occasion in 2017 when the Applicant proposed to her husband for a divorce, her husband became furious and threatened to kill her if she dared to raise it again in future.

5.In 2018 when she again returned to Indonesia for holiday, during which she confined to a male friend of her marital discord when her husband appeared and accused her of having an affair with her male friend, and proceeded to beat her severally that she lost consciousness and was subsequently taken to a nearby clinic for medical treatments.

6.Thereafter her husband insisted that she should continue to earn money working in Hong Kong and to remit money to him in Indonesia for his use, and so the Applicant returned to Hong Kong to carry on with her jobs, but when her last employment was prematurely terminated in June 2022, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 October 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 16 November 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and did not accept that there would be any real and substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her other than some angry words and empty threats or just to press her for money, that in any event it was a private domestic or monetary dispute between the 2 of them 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”) show that there are laws in Indonesia to protect women from domestic violence and that supports and assistances are available to them from various governmental departments and NGOs if needed, and that reasonable internal relocation alternatives are also available in Indonesia with a large population of 275 million people spread across a vast territory of more than 1.8 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 Bali or Surabaya where it would be difficult if not impossible for her husband to locate her.

9.On 5 December 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 10 March 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 March 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of fear of harm from her husband over their domestic or marital disputes but found no evidence to suggest that her husband to have any real intention to seriously harm or kill her other than angry words and empty threats, nor is there any evidence of any past ill-treatment or actual harm inflicted on her other than the one single incident of beating in 2018 that it is not accepted that the Applicant will face any real risk of such threats or harm from her husband upon her refoulement to Indonesia, and that in any event even if such claimed risk were real that it arose from their private domestic disputes between just the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to Indonesia that her claim for non-refoulement protection failed on all applicable grounds.

11.On 18 October 2023 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 in her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge.

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 her to file her Form 86 fell on 24 June 2023, the Applicant was therefore more than 3 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.

14.In the Applicant’s case, a delay of more than 3 months must be considered as substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 24 March 2023 to her then detention at Castle Peak Bay Immigration Centre (“CIC”) without being returned through undelivered post, I am unable to see any good reason or justification for the Applicant’s serious delay.

15.As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge. 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 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 established by the Director in his decision 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, a decision also agreed and confirmed by the Board, 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.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.Moreover, the Applicant recently on 14 January 2025 in writing requested to withdraw her application as she wants to return to her home country but without providing any explanation as to what has happened to her claimed risk in Indonesia.

20.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 the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.

Dated the 1^st day of April 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