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

HCAL 711/2019

[2022] HKCFI 3074

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 711 of 2019

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 submissions by the Applicant in open court.

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

1.    Extension of time for the Applicant to apply 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:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 13 March 2019 is late[1]. I shall deal with this issue below.

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is 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 a national of Indonesia.  She entered Hong Kong on 16 August 2014 as a foreign domestic helper and was permitted to stay until 21 July 2015. However, her employment contract was prematurely terminated on 22 August 2014.  She did not depart within the time limit and had overstayed since 6 September 2014. On 23 October 2014, she surrendered to the Immigration Department. On 20 November 2014, she lodged a non-refoulement claim.  On 6 March 2015, she gave birth to her daughter.  She also lodged a non-refoulement claim on behalf of her daughter on 21 July 2015.  For reason unknown, the daughter did not file an application for leave to apply for judicial review against the Board’s Decision. 

5.The applicant’s claim was based on the fear that, if refouled, she would be harmed or killed by her husband, Purnomo, and Purnomo’s villagers as she gave birth to her daughter out of wedlock.  She also feared that she would be sentenced to imprisonment for committing the crime of adultery. 

6.According to the applicant, in July 2014, she ended her employment in Hong Kong.  She then found out that she was pregnant with her boyfriend who later ceased to have contact with her upon knowing her pregnancy.  She dared not tell her family and her husband as her husband and the villagers would punish her for giving birth to a child out of wedlock.  She also feared that the police would not protect her as she learnt from the newspaper that adultery was a crime.  In relation to her daughter, the applicant feared that, as an illegitimate child, her daughter would not enjoy the social, legal and economic rights offered by the government and would be placed in the orphanage if the applicant was sentenced to imprisonment.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 18 April 2016 by the Director (the “Director’s First Decision”).    

The Director’s Decisions

7.The Director considered the applicant’s claim in relation to the following risks:

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

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

(3)   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

(4)   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 the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk for the reason that the level of risk of harm against the applicant upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to her [17]-[19.3]; and (iii) internal relocation was a viable alternative [20]-[28].

9.In the Notice of Further Decision dated 7 March 2017, the Director also concluded that the right to life of the applicant and her daughter would not be violated and thus dismissed her claim on BOR 2 risk (the “Director’s Second Decision”).

10.For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”. 

The Board’s Decision

11.The applicant appealed to the Director’s Decisions to the Board.  Both parties were legally represented and attended the oral hearing scheduled on 20 March 2017.  The applicant was also assisted by an interpreter [33].

12.The Board accepted the applicant’s claimed fear [38].  It further accepted that, as a single mother, the applicant and her daughter might face discrimination, social stigma and possible harassment if refouled [43]. However, it decided that such negative attitudes did not amount to any ground of the proscribed harm [44].  Meanwhile, after assessing the country of origin information, the Board found that internal relocation was available to them [51]-[67]. 

13.As a result, despite the Board considered that the risk of harm from the husband and the villagers was plausible if the applicant returned to the home village, it also considered that internal relocation to cities like Jakarta would be a viable alternative.  Thus, the Board rejected the applicant’s claim and dismissed her appeal.   

Application for leave to apply for judicial review of the Board’s Decision

14.The applicant filed Form 86 dated 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

15.In her affirmation in support of her application, the applicant did not set out any ground.

DISCUSSION

16.As mentioned in paragraph 1 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 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. Her delay is about 2 weeks and she has not disclosed any reason for her delay. Nevertheless, I shall first consider the prospect of the intended judicial review.

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

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.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.”

20.The applicant was legally represented before the Board. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The applicant has raised no valid ground to challenge the Board’s Decision.

21.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.

22.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

23.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 5^th day of October 2022

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