Nurimah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1706/2018

[2019] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1706 OF 2018

BETWEEN

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 Woodcock:

Leave to apply for judicial review be refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indonesian national who was a foreign domestic helper in Hong Kong from 1997 to 2002 and again from 28 April 2006.  She lost her last contract of employment on 13 October 2009 and overstayed from 28 October 2009.  She was arrested by the police for overstaying on 23 October 2010, a year later.  

2.The applicant lodged a torture claim which was rejected by the Director of Immigration (“the Director”) on 9 January 2013.  The applicant lodged an appeal to the Torture Claims Appeal Board (“TCAB”) against the decision in rejecting her torture claim and on 1 March 2013 the appeal/petition was refused by the TCAB.

3.The applicant had also filed a non‑refoulement protection claim under two other applicable grounds, BOR 3 and a persecution risk.  For herself she lodged that claim on 10 November 2010 and for her daughter she lodged a claim on 15 November 2012.  The Director rejected her claim under those applicable grounds on 6 July 2016.  By way of a notice of further decision dated 13 July 2017, the Director decided she had also failed to establish a personal and real risk of being arbitrarily deprived of her life in violation of BOR 2 if she returned to Indonesia. Her BOR 2 risk claim also failed.

4.The applicant and her daughter filed their appeals/petition against those decisions on 20 July 2016.  After an oral hearing was conducted, the adjudicator of the TCAB rejected both applicants’ appeal/petition on 9 February 2018.  Only this applicant, not her daughter, filed a notice of application for leave to apply for judicial review on 21 August 2018.  The applicant’s daughter’s name was originally written as the name of an applicant on the Form 86 but was crossed out and initialled by her mother.  This applicant did not request an oral hearing therefore; I will consider her application on the papers.  She did name both the Director and the TCAB as proposed respondents.

5.This notice of application was filed late; it was not within three months of the date of the adjudicator’s decision (Order 53 rule 4).  It was six and half months late.  Her notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late.  It does not seek an extension of time to file this application as it should.  Her affirmation in support of her application makes no mention of the delay nor gives any reason for the delay.  In fact, she only states that the decision of the Board is fair and unreasonable.  I assume she means unfair and unreasonable.

6.I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

7.I find the delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time.  In fact, there are no proper or substantive grounds put forward to support this application.  The application, even on review of the papers, does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.

8.In any event, I did consider the adjudicator’s decision and the reasons why he rejected the applicant’s appeal/petition. The adjudicator of the TCAB, as did the Director, analysed the applicant’s claim under three applicable grounds;

a. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

b. risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

c. risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.The adjudicator treated the appeal as a rehearing and directed that a hearing be conducted.  The applicant appeared and elected to answer questions.  The adjudicator set out the law and key legal principles applicable to an applicant in such a situation and to all three grounds.  He concluded that the applicant was probably a witness of truth.  Her story was plausible and followed a common pattern of the sort commonly seen where there are matrimonial arguments about money with some minor violence followed by many threats, attempts to reconcile, then new partners and children for both parties and so on.  However, the adjudicator concluded that the level of real risk to this applicant was non‑existent.

10.He found that unless it could be shown that the applicant could not access state protection in Indonesia then this was not a case for non‑refoulement.  He then went on to find that the Country of Origin information showed that Indonesia has a police and judicial system under which perpetrators of domestic violence may be arrested and persecuted.  He found the applicant had access to assistance from several non‑governmental organisations who assist victims of domestic violence.

11.The adjudicator found that the applicant’s husband in Indonesia had made threats but there was no substantial risk from his verbal utterances.  And in any event, there was systematic state protection which the applicant could access. There was no BOR 2 risk.  He also found that there was no BOR 3 risk it could not be shown that there was a substantial risk that the applicant and her daughter would be subjected to ill-treatment reaching a minimum level of severity.  Lastly, the level of persecution risk was very low, her fear of persecution was not objectively well‑founded and she had failed to establish a real risk of persecution as defined in the refugee convention.

Leave to apply for judicial review

12.The applicant seeks to judicial review both the Director and the adjudicator of the TCAB.  In my view, this is not appropriate here.  Despite the delay, I will consider her grounds of his application against the decision of the TCAB adjudicator only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  There is no room for a judicial review of the Director’s decision; there is no special reason or exceptional reason here.

13.The applicant has not set out any grounds in his affirmation. I did consider with rigorous examination and anxious scrutiny the papers of this application.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same in fact applies to the decision of the Director.  My decision would equally apply to the applicant’s daughter if her name had been added to this application.

14.In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated the 20^th day of December, 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

Form CALL-1