Nanik Irnamawati v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1502/2018

[2020] HKCFI 2833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1502 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 the Applicant being present/ absent in open court.

Order by Deputy High Court Judge C P Pang:

1.     Extension of time for the application for leave to apply for Judicial Review be refused; and

2.     The application for leave to apply for Judicial Review be dismissed.

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 1984, is a national of Indonesia.  She arrived in Hong Kong in mid-2006 to work as a domestic worker.  She stayed in Hong Kong lawfully until her contract was prematurely terminated on 28 June 2010.  She overstayed until she was arrested on 9 May 2011 and referred to the Immigration Department for investigation.  She then lodged a torture claim and was released on recognizance.  From 20 November 2012, she ceased to comply with the terms of recognizance by failing to report and was rearrested by police on 21 May 2013 and returned to the Immigration Department.  She was subsequently again released on recognizance.  On 29 July 2013, she lodged her claim for non-refoulement protection.  Her previous torture claim was consolidated with her non-refoulement claim by the Director for assessment.  On 10 September 2015, she was convicted of offences in relation to unlawful employment and sentenced to 15 months’ imprisonment.

3.The facts of the case and the basis for the Applicant’s non-refoulement claim are summarized at para [29-31] 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 the creditor of her father who was a heavy gambler having borrowed a loan from a man called Supriyanto.  In 2010, she received a telephone from her father who told her that he owed the creditor 50 million Rupiah.  He was unable to repay but the debt would be reduced if she agreed to marry the lender.  If she refused, the creditor would kill her father and also kill her if she returned to Indonesia.  After this telephone conversation, she received SMS and ongoing harassing calls from the creditor reiterating the demand for her to marry him and threats that she and her father would not be safe if she refused.

The Director’s decision

4.By a notice of decision dated 29 December 2016, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds for believing any real and substantial risk of her being harmed or killed by Supriyanto.  The Director also found state protection as well as internal relocation as a reasonable option available to the Applicant.  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 6 June 2017.

6.By a decision dated 31 July 2017, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the Applicant’s claim at paragraphs [36-45] of its decision.  The essential reasons can be summarized as follows:  

(1)  the Applicant’s account concerning her father who accumulated many debts and he might have received threats was plausible [36];

(2)  however, the Board did not accept that the Applicant had herself been contacted or targeted by the lender in relation to any debts owed by her father [37];

(3)  there were inconsistencies in her evidence and fundamentally different accounts of the Applicant’s initial responses in relation to the lender’s request [38];

(4)  the failure of the Applicant to take the first opportunity to seek protection and to report to the authorities as required are suggestive of an absence of any genuine subjective fear on the Applicant [40];

(5)  the Applicant’s claim that the lender as her father’s creditor demanded that she marry him to offset her father’s debt is inherently implausible [41];

8.Having considered all the circumstances relied on by the Applicant, the Board concluded that there was no real risk that she would face any of the proscribed forms of harm should she return to Indonesia.

Application for leave to apply for judicial review

9.The Applicant filed a Form 86 on 30 July 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

10.In the Form 86 and affirmation in support of the application, the Applicant did not set out any grounds for the relief sought.  No request was made for an oral hearing.  The application is 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, country of origin information, 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.

Applicationout 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 will 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

14.The 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, at para 37.

15.In this case, the 3-month time limit ended on 31 October 2017 and the application was late by about 9 months. The Applicant did not request extension of time or give explanation for the delay.  The delay was no doubt a substantial and excessive one.  And the Applicant did not provide any explanation for it.  The delay is inexcusable.

Merits of the intended application

16.As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the Applicant has no prospect of success at all.

17.In the present case, the Board in fact refused the Applicant’s appeal/ petition on the ground that it rejected the account of primary facts in relation to the threat of harm based on the major inconsistencies and illogicality in her evidence and her delay in making her protection claim.  The Director also found that state protection and internal relocation are available to her.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

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

19.The Form 86 and affirmation in support contained no particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  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 findings of the Director and the Board.

20.I agree with the Board’s observation of the Applicant’s conduct in Hong Kong, in particular her delay in lodging the claim for protection.  It damaged her credibility and was inconsistent with someone in genuine fear for her life and safety.

21.Further, even if one gives her account the most favourable interpretation, the alleged past experiences of her can hardly establish a real risk of future harm, if she was refouled.  There was no valid reason why her father’s creditor would target her and still wish to pursue her after so many years.

22.Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria.  They gave the Applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

23.There cannot be any criticism of the decisions of the Director and the Board which are plainly reasonable.

24.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.

Disposition

25.For the reasons given, there is no prospect of success in the Applicant’s intended application.  There is no good reason for extending the time to make the application.  Accordingly, I refuse to grant leave to extend time and dismiss the application for leave to apply for judicial review.

Dated 18 November 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