Case Detail

HCAL 97/2019

[2023] HKCFI 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 97 OF 2019

_____________

BETWEEN

	BETY SUSANTI	Applicant
and
	TORTURE CLAIMS APPEAL BOARD	1st Putative Respondent
	DIRECTOR OF IMMIGRATION	2nd Putative Respondent

_____________

Before:

Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing:	18 May 2023
Date of Decision:	2 June 2023

_____________

D E C I S I O N

_____________

1. On 15 December 2021 I refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) in rejecting/dismissing her appeal/petition regarding her non-refoulement claim upon finding that none of her proposed grounds were reasonably arguable for her intended challenge, that there was no error of law or procedural unfairness in her process before the Director of Immigration (“Director”) or the Board or in their decisions, and that there was no reasonable prospect of success in her intended application.

2. The applicant now by a summons issued on 31 March 2023 seeks extension of time to appeal against that decision, as the 14-day period for her to file her appeal under Order 53 rule 3(4) of the Rules of the High Court, Cap 4A expired on 29 December 2021, and hence she was some 15 months late with her intended appeal.

3. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of success of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel(Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director ofImmigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur[2018] HKCA 226; and Re Saqlain Muhammad[2018] HKCA 346.

4. In the applicant’s case, a delay of 15 months must be considered as extremely substantial and inordinate, for which she explained at the hearing of her summons that she never received the decision in the mail as she had moved her residence several times during 2021 and 2022, and was only informed of the decision by an immigration officer when she recently reported on her recognizance.

5. The court record shows that the decision was sent on the same day of 15 December 2021 to the applicant’s then reported address without being returned through undelivered post, and if she did at that time change her address, of which she admitted at the hearing of never informing the court of her new address, but which was clearly her duty to do so, the applicant has only herself to blame for the delay so caused to her intended appeal, and as such I do not accept that she has any good or valid reason for her such serious delay.

6. More importantly, the applicant also failed to put forth any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision or why it may reasonably be argued that the decision was unfair or unreasonable either in her summons or her affirmation, nor was she able to do so at the hearing of her summons, and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in her intended appeal either.

7. I should note that the applicant also applied by affirmation and at the hearing to add her daughter to her summons, but as she never included her daughter in her leave application for judicial review in the first place, nor did she attend the subsequent hearing of her application so as to do so, and hence the court had never dealt with any leave application for judicial review by her daughter in that decision, and accordingly the applicant was advised at the hearing that she would have to make a separate albeit late application for her daughter for leave to apply for judicial review of the Board’s decision regarding her daughter’s non-refoulement claim, and as her daughter is a minor, the applicant was also advised to seek legal representation for her daughter or to apply for Legal Aid so as to comply with Order 80 Rule 2 of the Rules of the High Court for the making of her daughter’s application.

8. In the premises, and for the reasons given as regard the applicant’s own application, it would be futile to extend time for what appears to be a hopeless appeal, and accordingly I refuse her application for extension of time to appeal, and dismiss her summons.

	(Bruno Chan)
	Deputy High Court Judge

The applicant appeared in person

HCAL 97/2019

[2021] HKCFI 3781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 97 of 2019

BETWEEN

	Bety Susanti	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The Applicant is a 31-year-old national of Indonesia who arrived in Hong Kong on 26 June 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 June 2016 or within 14 days of its early termination, but when her employment was prematurely terminated on 6 January 2016, she did not depart and instead overstayed in Hong Kong, during which she formed relationships with some Indian men in Hong Kong out of which she gave birth to a daughter on 20 June 2017, and subsequently surrendered to the Immigration Department and raised a non-refoulement claim for both herself and her daughter on the basis that if they returned to Indonesia they would be harmed or killed by her parents for giving birth to a child out of wedlock and of mixed-race thus bringing dishonor to the family and/or facing discrimination by the community. They were subsequently released on recognizance pending the joint determination of their claim.

2. The Applicant was born and raised in Selopuro, Blitar, Indonesia. After leaving school she assisted in her parents’ grocery store in their home district, and in 2011 she went to Taiwan to work as a domestic helper before coming to Hong Kong on 26 June 2014 to commence her employment as a foreign domestic helper, but when her employment was prematurely terminated on 6 January 2016, she did not depart and instead overstayed in Hong Kong, during which she formed relationships with some Indian men and subsequently gave birth to her daughter on 20 June 2017, but when she informed her parents in Indonesia of it, they were furious and accused her of bringing dishonor to the family and vowed to disown them and threatened to kill both of them if they were to return to Indonesia, and so the Applicant surrendered to the Immigration Department and raised a non-refoulement claim for protection for herself and her daughter, and for which she completed Non-refoulement Claim Forms (“NCF”) on 22 December 2017 for both of them and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

3. By a Notice of Decision dated 19 January 2018 the Director of Immigration (“Director”) rejected the claim of the Applicant and her daughter on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their 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”).

4. In his decision the Director took into account of all the relevant circumstances of the claim of the Applicant and her daughter and found no substantial grounds for believing that they would be in danger of being harmed or killed by the Applicant’s parents or discriminated against by the Indonesian society upon their return to Indonesia due to the absence of any past ill-treatment from them, that it was a private family dispute between the Applicant and her parents without any official involvement that state or police protection would be available to the Applicant and her daughter if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws in Indonesia to protect unwed mothers and illegitimate children and with supports and assistances from both government and NGOs available to assist the Applicant and her daughter as well as reasonable internal relocation permissible in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move with her daughter to other part of Indonesia away from her home district in large cities such as Bali or Jakarta where it would be difficult if not impossible for her parents to locate them.

5. On 2 February 2018 the Applicant lodged an appeal for herself and her daughter to the Torture Claims Appeal Board (“Board”) against the Director’s decision, of which the Board did not find necessary to hold any oral hearing and dealt with their appeal in their absence and on paper, and on 30 October 2018 the Board dismissed their appeal and also confirmed the Director’s decision.

6. In its decision the Board did not take issue with the Applicant’s claim as stated but agreed with the Director that the absence of any ill-treatment to the Applicant or her daughter from the Applicant’s parents or any other person in Indonesia does not put their case within any of the applicable risks, that their problem with the Applicant’s parents was a private family dispute without any official involvement that state or police protection would be available to them upon their return to Indonesia, and that with reasonable internal relocation available for the Applicant to move safely with her daughter to other area away from her home district without any risk of being located and without any undue hardship with the supports and assistances from both government and NGOs that their claim for non-refoulement protection failed on all applicable grounds.

7. On 10 January 2019 the Applicant filed her Form 86 for herself only for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking review was given in her Form or in her supporting affirmation of the same date in which she just attached copies of those decisions but without putting forth any proper ground for her intended challenge, nor did she attend the hearing of her application to do so or to explain why she has not included her daughter in the application. As such I shall only deal with the application for herself only as so stated, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

8. 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.

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

10. 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.

11. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 15^th day of December 2021.

(K.H. LI)
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

Notesfor the Applicant: If leave has been granted, the Applicant or his 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 15 December 2021 Bety Susanti 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 15 December 2021 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 10150/18/2/34/I1058 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 3392-3/17 (formerly RBCZ/11186/17 & 11647/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

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BETY SUSANTI v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

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	consideration of the documents only; or
	consideration of the documents and the Applicant being absent in open court;