Case Document

100%Judiciary

HCAL 2546/2018 and HCAL3356/2019
(Consolidated)

[2020] HKCFI 1907

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

No. 2546 of 2018 and No. 3356 of 2019

BETWEEN

	Sukiyah	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

(Consolidated pursuant to the Order of Deputy High Court Judge K.W. Lung dated 11 August 2020)

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 the Applicant being absent in open court;

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

(1) HCAL 3356/2019 be consolidated with HCAL 2546/2018;

(2) Leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 6 September 2019 be refused;

(3) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 1 November 2016 be refused; and

(4) Applications for leave to apply for judicial review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.The applicant took out two separate applications for leave to apply for judicial review of the respective Decisions dated 1 November 2016 (“the Board’s 2016 Decision”) and 6 September 2019 (“the Board’s 2019 Decision”) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”). Since these two applications are related and all the issues should be dealt with together, I decide to consolidate these two applications.

2.The applicant did not appear in court. I shall assess her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, the respective Form 86 in each application was amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong and worked as a domestic helper on 11 July 2012. Her employment contract was terminated prematurely and she overstayed. She was arrested by police and was referred to the Immigration Department on 3 April 2013. She lodged her non-refoulement claim on 7 March 2014.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband, Mr Muhamad Sabar or the creditors from whom he borrowed money.

6.Shortly after she had married her husband, she discovered that her husband was a thief and a drunkard. Also, he had borrowed 50 million Indonesian Rupees from the creditors and had used her name as the guarantor of the loan. He was unable to repay. Her husband demand money from her and whenever she was unable to give him money, he beat her. This happened many times. On three occasions, he threatened her that if she did not repay the debts for him, he would kill her. She left the family and came to Hong Kong to work as a domestic helper.

The Director’s Decisions

7.The Director considered her 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”).

8.By Notice of Decision dated 2 September 2016 (“the Director’s Decision”), the Director refused her claim on torture risk, BOR 3 risk and Persecution risk for the reason that the level of risk of harm from her husband if she returned to Indonesia was low [13]; that state protection was available to her [18] and that internal relocation was an option open to her [19].

9.By Notice of Further Decision dated 9 January 2017, the Director rejected her claim on BOR 2 risk as she was unable to establish BOR 2 risk.

The Board’s 2016 Decision

10.The applicant appealed to the Board against the Director’s Decision by filing Notice of Appeal dated 23 September 2016. She was out time as she failed to file her Notice of Appeal within 14 days from the date of the Director’s Decision.

11.The Board took a preliminary issue under section 37ZT(2) of the Ordinance and paragraph 9.2 of the Practice and Procedure Guide of the Administrative Non‑refoulement Claims Petition Scheme.

12.Pursuant to section 37ZT(3) of the Ordinance, the Board considered whether there were any special circumstances that it would be unjust to disallow the applicant to file her Notice of Appeal out of time. The Board had considered the reasons she gave for her late filing. She explained that she expected to be informed by the Board by telephone. However, her telephone was not operating at the material time because she had not been able to keep her SIM card on credit. She received another letter from the Board. She called the Board and was told to attend the Immigration Department.

13.The Board was not satisfied with her explanation as she only adopted a sit-back and wait attitude in the process. The Board went further to consider that she was legally represented at the interview with the immigration officer and she would have been legally advised of the time for her appeal. The Board had also considered the factual basis of her claim as set out in the Director’s Decision. It found that there was nothing disclosed in the facts asserted by the applicant which would amount to special circumstances. The Board therefore refused to extend time for her to file the Notice of Appeal.

The Board’s 2019 Decision

14.The applicant also appealed to the Board against the Director’s Further Decision. She attended the Board on 9 August 2019.

15.Having considered her evidence at the hearing, the Board rejected her appeal and confirmed the Director’s Further Decision. The Board found that there were inconsistencies in her evidence and that she had invented the evidence in the hope of strengthening her application for non-refoulement protection [37 & 38]. However, it accepted that she was regularly subjected to physical abuse at the hands of her husband. But she did not sustain any serious injury as a result thereof. The last occasion on which she was beaten by her husband was in 2011 before she came to Hong Kong for the first time and she had not seen her husband since then. The possibility of her husband harming her or the creditor locating her would be rather remote if she returned to Indonesia [39-42].

Application for leave to apply for judicial review

16.The applicant filed Form 86 on 13 November 2018 for leave to apply for judicial review of the Board’s 2016 Decision. It is apparent that her application is late. The Court has to consider the merit of her intended judicial review to determine whether time should be extended for her to proceed with her application. AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §§27 & 35.

17.She also filed Form 86 on 11 November 2019 for leave to apply for judicial review of the Board’s 2019 Decision.

18.In her affirmations in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

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

20.As to the Board’s 2016 Decision, the Board had considered her explanation for her delay and refused to accept it. There is nothing amiss for the Board to make this decision. The Board had gone further to consider the facts of her case by making reference to the Director’s Decision. It found that there was nothing which appeared unjust if time was not extended for her to file her appeal. This approach is in compliance with the requirements set down in the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 §§17-20.

21.As to Board’s 2019 Decision, 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.”

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

23.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review against the Board’s 2019 Decision.

CONCLUSION

24.Since the applicant’s applications for judicial review of the Board’s Decisions have no reasonable prospect of success, I refuse to extend time for her to proceed with her application for leave to apply for judicial review against the Board’s 2016 Decision. I also refuse to grant her leave to apply for judicial review of the Board’s 2019 Decision. I dismiss her consolidated applications.

Dated the 11^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 Applicant on 11/8/2020 Sukiyah 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 11/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4970/16/9/349/I476 & BOR 65/17/1/42/I4 Director of Immigration Putative Interested Party’s ref. no.: ImmD/CR T/C 1494/16 (formerly RBCZ/3000619/14) & QA T/C 1494/16 (foremerly RBCZ 3000619/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)