Case Document

100%Judiciary

HCAL 1907/2018

[2020] HKCFI 1877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1907 of 2018

BETWEEN

	Siamah	1^st Applicant
	Muhamad Kelvin	2^nd Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	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;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicants in open court;

Order by Deputy High Court Judge K.W. Lung:

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 12 September 2017 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

THE APPLICATION

1.The applicants are mother and son. I shall refer to the first applicant as the applicant, the second applicant as applicant son unless otherwise stated below.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 12 September 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended by deleting the Director of Immigration (“the Director”) as proposed respondent and deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicants

4.The applicant came to Hong Kong on 4 October 2010 as domestic helper. Her employment contract was prematurely terminated, but she overstayed and was arrested on 2 July 2013. She was charged with illegal overstaying, convicted and sentenced to one month’s imprisonment, suspended for three years. On 29 April 2013, she gave birth to her son out of wedlock in Hong Kong. On 12 November 2014, she lodged a torture claim with the Director on behalf of herself and her son on the ground that if refouled, she would be harmed by her creditor, Madam Titin because she could not afford to repay the outstanding debt to her. She also feared that her son would be discriminated against if he returned to Indonesia because he was born out of wedlock.

5.The applicant claimed that in April 2010, she borrowed a loan of 30 million Indonesian rupiah from Titin to open a grocery store in her village. She was unable to repay the money. Titan threatened that if she refused to pay back the outstanding debt, she would kill her.

The Director’s Decisions

6.The Director considered their application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 17 March 2015 (“the Director’s Decision”), the Director refused their claim on Torture risk, BOR 3 risk and Persecution risk for the reason that their claim was not substantiated. The Director found that the level of risk if they returned to Indonesia was low [16]; that reasonable state protection was available to them [21] and that internal relocation was an option open to them [22].

8.By Notice of Further Decision dated 29 November 2016 (“the Director’s Further Decision”), the Director rejected their claim on BOR 2 risk because they were unable to establish by evidence the BOR 2 risk.

The Board’s Decision

9.The applicants appealed to the Board against the Director’s Decision and attended a hearing on 10 March 2016. For their appeal against the Director’s Further Decision, the Board scheduled a hearing on 22 August 2017. But they did not attend the hearing without explanation upon request by the Board. The Board proceeded to considered their case.

10.By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decisions.

11.The Board had taken the opportunity of asking questions from the applicant at the hearing on 10 March 2016 and found that her evidence in relation to her being harmed by Titan, her creditor, was incredible [36]; and that her fear of harm in relation to both herself and her son at the hands of Titan if she was to be refouled to Indonesia were based on false assertions, speculation and hearsay evidence of the applicant [40]; that her son would be discriminated in Indonesia was not well-founded but more speculative in nature [41]. See the detailed reasons in paragraphs 28-41 of the Board’s Decision.

12.For the reasons set out in the Board’s Decision, the Board, rejected all the risks as claimed by the applicants.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 11 September 2018 for leave to apply for judicial review of the Board’s Decision. This application is late as the Board’s Decision is dated 17 September 2017.

14.In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §§27 & 35 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

15.In the applicant’s affirmation in support of their joint application, she had not set out any ground to say that the Board erred in coming to its decision.

DISCUSSION

16.The applicant appeared before me and confirmed that she had had a fair interview with the immigration officer and a fair hearing before the Board. She understood the Director’s Decision and the Board’s Decision. She had no comments on the Board’s findings. See paragraph 11 above.

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

21.Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 7^th day of August 2020

	(Mike Mak)
	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 Applicantss on 7/8/2020 Siamah ; Muhamad Kelvin 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 7/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1295/15/3/215/I37 & USM 1296/15/3/216/I38 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 107/15 (formerly RBCZ 3245/14); QA T/C 108/15 (formerly RBCZ 3246/14); QA T/C 2934/16 & QA T/C 2935/16 (formerly RBCZ 9000951/16 & RBCZ 9000952/16) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)