S v. Torture Claims Appeal Board and Another
Read the full judgment text of HCAL 2531/2018 on BabelCite. This High Court CFI judgment was delivered on 1 November 2019.
1. The applicant applies for leave to apply for judicial review of the Decision dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“ the Board’s Decision ”).
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HCAL 2531/2018 [2019] HKCFI 2707 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2531 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge K.W. Lung:
Observations for the Applicant: THE APPLICATION 1.The applicant applies for leave to apply for judicial review of the Decision dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). 2.The applicant is legally aided and is represented by Mr. Francis Ngan, Counsel. The applicant 3.The applicant is an Indonesian national. She came to Hong Kong to work as a domestic helper. She was permitted to stay as such until 2 September 2012. She overstayed. She took up employment without permission. She was arrested by the Immigration Department on 6 January 2014. On 8 January 2014, she was convicted and sentenced to 4 months’ imprisonment. She lodged her non-refoulement on 9 March 2014. 4.In support of her claim, she said that if refouled, she would be harmed or killed by her husband. In 2005, her husband borrowed money for his business. His business was not running well. He was unable to repay the loan. He was easily agitated and he abused her by assaulting her by kicking, beating and pushing her onto the floor. She felt helpless. He locked her up. However, he told her to go to Hong Kong and work there in order to earn money for him to repay the debt. The Director’s Decision 5.The Director considered her application in relation to the following risks:
6.By Notice of Decision dated 22 December 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the claimed risk of ill-treatment was not real and unforeseeable [33]; state protection was available [18] and internal relocation was possible and reasonable [19]. The Board’s Decisions 7.By Notice of Appeal dated 17 January 2018, the applicant appealed to the Board against the Director’s Decision. Based upon the date of the Director’s Decision, the Board considered that her Notice of Appeal was filed out of time. It considered that she had given no explanation for her delay and rejected her application for appeal without a hearing. DISCUSSION 8.However, by letter dated 23 April 2019, the Department of Justice acting for the Director confirmed that the Director’s Notice of Decision was posted on 8 January 2018. The deadline for her to file her Notice of Appeal is therefore on 22 January 2018. The Department of Justice conceded that the Board’s decision of refusing her Appeal should be set aside and the matter be remitted to the Board for its fresh consideration. 9.I understand that the Department of Justice will not contest even for the judicial review. However, the hearing of judicial review must commence under rule 5 of the Order 53 of the Rules of the High Court. This is the stage where the application is for leave to apply for judicial review. 10.In the circumstances, leave for the judicial review must be given. CONCLUSION 11.I grant her leave to apply for judicial review of the Board’s Decision. The applicant should follow rules 4 and 5 of the Rules of the High Court. To save time and costs, the parties should consider the judicial review by way of a consent order. Dated the 1st day of November 2019
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
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