KARMI v. TORTURE CLAIMS APPEAL BOARD [Decision on Leave Application]

HCAL 525/2022 [2024] HKCFI 2894 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 525 OF 2022 BETWEEN Karmi Applicant and Torture Claims Appeal Board and Putative Respondent 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: 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: The Applicant is a 39-year-old national of Indonesia who last arrived in Hong Kong on 8 March 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 March 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 12 March 2013, she did not depart and instead overstayed, and was arrested by police on 3 June 2014. After she was referred to the Immigration Department for investigation, 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 creditors over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim. The Applicant was born and raised in Kampung Parigi II, Desa Parigi Mulya, Cipunagara Sub-district, Subang Regency, West Java, Indonesia. After leaving school she worked in the factory and moved to reside in Bandung Regency where she subsequently married her husband and raised a family with 2 children. She soon discovered that her husband was frequently without jobs and instead indulged in gambling and drinking, and when drunk he would become abusive towards the Applicant by hitting her at will. Due to his gambling her husband had incurred numerous gambling debts, and for which the Applicant frequently had to resort to borrowing from the local money-lenders to help her husband to repay his gambling debts as well as to meet their family expenses. However, one day in 2007 her husband left their home with the monies which the Applicant had borrowed from the money-lenders and disappeared, and when her creditors started to send men to threaten her, and in order to repay her loans, the Applicant in 2011 went to Taiwan to work as a domestic helper before coming to Hong Kong in 2012 to work as a foreign domestic helper, but when her last employment was prematurely terminated in March 2013, the Applicant was afraid to return to Indonesia to face her creditors, and so she 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 18 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). By a Notice of Decision dated 5 April 2016 and a Notice of Further Decision dated 3 April 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”). In his decisions 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 creditors 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 any of them to seriously harm or kill her other than to press her to repay her debts, that in any event these were private monetary disputes between her and her creditors 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 reasonable internal relocation alternatives are available in Indonesia with a large population of 255 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 to other areas of the country away from her home district in large cities where it would be difficult if not impossible for her creditors to locate her. On 18 April 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, but for which she failed to attend the scheduled oral hearing on 17 May 2017 or thereafter to provide any explanation for her failure to attend or to request for another oral hearing, whereupon the Board proceeded to deal with her appeal in her absence and on paper. On 9 June 2017, her appeal was dismissed by the Board which also confirmed the Director’s decision. In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim which she failed to attend her appeal hearing to explain or clarify that it doubted the credibility of her claim of fear of harm from her creditors that caused her to overstay in Hong Kong to seek protection, that in any event these even if her account of events as claimed were true that such risks arose from private monetary disputes between her and her creditors 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 that her claim for non-refoulement protection failed on all applicable grounds. On 23 June 2022 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 the Applicant’s 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 give the Applicant sufficient time and chance to arrange relevant evidence for her non-refoulement claim as well as her appeal. 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. As the last day of the three-month period for the Applicant to file her Form 86 fell on 9 September 2017, she was therefore some 4 years 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. In the Applicant’s case, a delay of 4 years 9 months must be considered as extremely substantial and inordinate, for which she explained in her affirmation that she never received the Board’s decision in the mail, and that it was only in June 2022 when she was informed by her immigration officer thereof, but by then she was already seriously out of time with her application. The record shows that the decision was sent on the same day of 9 June 2017 to her then reported address without being returned through undelivered post, and that it was also the Applicant’s duty to regularly check with the Board as to the progress of her appeal. In the circumstances, and in the absence of any evidence to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good or valid justification of her such serious delay. 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 his 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 and her creditors 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. 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. 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 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. 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. Moreover, the Applicant recently on 7 August 2024 in writing requested to withdraw her application as her problem in her home country has been solved that she now wants to return to Indonesia. 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 24th day of October 2024 (Chung Lai Fan, Christine) 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 Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s 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 24 October 2024 Karmi 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 24 October 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 3462/16/4/70/I302 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2315/15 (formerly RBCZ 2203/14), Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) ____________________________________________________________________________ Form CALL-1