HCAL 998/2022
[2022] HKCFI 3445
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 998 of 2022
| BETWEEN | | |
| Arum Arasmita | 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:
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 26 June 2019 refused; and
2. the application for leave to apply for Judicial Review dismissed.
Observations for the Applicant:
1. The Applicant is a 43-year-old national of Indonesia who arrived in Hong Kong on 8 July 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 8 July 2010 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 September 2009, she did not depart and instead overstayed, and was arrested by police on 2 July 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to send him money for his use, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Palembang, Sumatera Selatan, Indonesia. After leaving school she married her husband and moved to live with him in Cilacap, Java to raise their family.
3. Soon the Applicant found her husband abusive and violent towards her that 3 months after giving to her daughter, she left with her daughter to return to her parents’ home in Palembang, and in order to support herself and her daughter, she in 2003 went to work in Malaysia.
4. In 2005 the Applicant returned to her husband’s home in Cilacap after he had promised to reform his behavior, but soon discovered that he had failed to do so, and so after 2 weeks she left him to return to her parents’ home in Palembang.
5. In 2008 the Applicant came to Hong Kong to work as a foreign domestic helper, during which she received telephone calls from her husband demanding for money from her for his use, and when she refused, he then threatened to kill her when she returned to Indonesia.
6. As a result the Applicant cut him off from her telephone contact and had since not heard from him, but after her last employment contract was prematurely terminated on 2 September 2009, she was afraid to return to Indonesia, and so she overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her torture claim, and after it was rejected by the Immigration Department, she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 14 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
7. By a Notice of Decision dated 10 September 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her husband upon her return to Indonesia due to the absence of or 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, that she had not heard from him all these years that it is not accepted that he would still have any adverse interest in her, that in any event it was a private domestic dispute between the 2 of them 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 250 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 part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband to locate her.
9. On 19 September 2018 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 4 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 26 June 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.
10. In its decision the Board accepted the Applicant’s claim of fear of harm from her husband but found no evidence of any real intention of him to seriously harm or kill her due to the low intensity and frequency of past ill-treatment from him, that it is doubtful that he would still have any adverse interest in her after having no contact with her for more than 10 years, and that in any event it was a private domestic dispute between the 2 of them without any official involvement that state/police protection would be available upon her return to Indonesia as well as reasonable internal relocation for her to move safely to other part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.
11. On 26 September 2022 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, and in her supporting affirmation of the same date she just made bare assertion that her claim was rejected without proper inquiry or careful understanding of her situation but without providing any details or particulars or elaboration as to how it was so, nor did she request any oral hearing for her application.
12. By then the Applicant was also seriously 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 for extending the period within which eth application shall be made.
13. As the last day of the three-month period for her to file her Form 86 fell on 26 September 2019, the Applicant was therefore 3 years 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 ofImmigration [2016] 2 HKC 393.
14. In the Applicant’s case, a delay of 3 years must be considered as extremely substantial and inordinate, for which the Applicant did not provide any explanation in her Form or her affirmation, and as the record shows that the decision was sent on the same day of 26 June 2019 to her last reported address without being returned through undelivered mail, I am unable to see any good reason for her such serious delay.
15. As for the merits, if any, of her intended application, as noted above the Applicant has failed to put forth 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; ReMudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and NupurMst v Director of Immigration[2018] HKCA 524.
17. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision 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.
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 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 extremely serious delay, I refuse to extend time and accordingly dismiss her leave application.
Dated the 11th day of November 2022.
| | (TAM Kam-man)
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 11 November 2022
Arum Arasmita
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 11 November 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 13509/18/9/270/I1468
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3051/18 (Formerly RBCZ 2001149/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
|
Form CALL-1