Umi Ngatoah v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 954/2018

[2020] HKCFI 2635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 954 OF 2018

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 submission by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1973, is a national of Indonesia.  She first arrived in Hong Kong in July 2008 to work as a domestic helper.  Her employment contract was terminated in November 2011, since then she overstayed unlawfully until she was arrested by the police on 5 July 2017 for taking up unapproved employment and overstaying.  She was convicted and sentenced to 6 months’ imprisonment.  On 19 July 2017, she lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [10-16] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her former husband.  She claimed that she had been assaulted by him for 4 years until 2008 when she obtained divorce order from court with assistance of her lawyer.  When she was granted the order in court, her ex-husband threatened to kill her as they left the court room.  The court police officer arrested him and detained him for a week.  He continued to threaten her after his release.

The Director’s decision

4.By a notice of decision dated 27 October 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 22 January 2018.

6.By a decision dated 8 February 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at para [56-92] of its decision.  The main reasons are:

(1)  The Board accepted that she was able to obtain a divorce from an abusive husband [60];

(2)  The divorce court must have accepted the allegations that her husband had ill-treated her [63];

(3)  According to credible and reliable COI materials, the government of Indonesia had set up or established avenues for battered women to seek protection from abusive spouses or partners [64].

(4)  The credibility of her ignorance of avenues of protection for battered women was implausible [65];

(5)  It rejected her claim that she would be without any state protection [66];

(6)  There was no reliable evidence that she had suffered physical and/or mental suffering of the requisite severity [70].

8.Having considered the totality of the evidence before it, the Board concluded that the applicant would not be at any real risk of proscribed harm, if refouled.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 28 May 2018 for leave to apply for judicial review of the decisions of the Director and the Board.  Although she wrongly referred to the dates of the decision, her application will be dealt with on the basis that it was against the relevant decisions.

10.By a letter dated 7 July 2020 posted to the last updated address of the applicant with the Immigration Department, the court invited the applicant to submit information including any submissions that she would like to make and whether she would like to have an oral hearing.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

Application out of time

13.It must be pointed out first that the applicant’s intended application for judicial review was made out of time.  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 date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  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.

14.The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.

15.In this case, the 3-month time limit for the application against the Board’s decision expired on 8 May 2018 and the application was late by about 3 weeks, for which the applicant did not provide any explanation.  However, as the delay was not a long one, I will focus on the merits of the intended judicial review.

16.In the present case, the Board in fact took a view on facts favourable to the applicant and did not take issue with her asserted primary facts in respect of the assaults by her ex-husband.  It however disagreed with the applicant on the assessment of risk flowing from such events essentially based on the fact that she did not seek protection during the years she was abused, its findings of the availability of state protection in reliance of reliable COI materials, and her alleged ignorance of avenues of protection being found implausible.

17.As explained above assessment of evidence, risk of harm, and availability of state protection are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

18.The Form 86 and affirmation did not set out any ground for the relief sought.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

19.Even on her own account, the alleged past ill-treatment was of low intensity.  It did not reach the level of severity required by law to constitute torture or CIDTP.  She did not raise her protection claim until she had overstayed for more than 5 years. The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for her life and safety.  There cannot be substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

20.The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.  There cannot be any criticism of its determination which is eminently reasonable.

21.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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

22.For the reasons given, there is no reasonable prospect of success in the applicant’s intended application.

Disposition

23.In the absence of good reason for extending the time to make the application, I refuse to grant extension of time and dismiss the application for leave to apply for judicial review.

Dated 15 October 2020

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