Titin Maesyaroh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 960/2019

[2023] HKCFI 643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 960 of 2019

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 Applicant being absent in open court;

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

1.  The extension of time for the application for Judicial Review be refused; and

2.  The application 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 1 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 9 April 2019 is late[1]. This issue will be dealt with 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 deals with her application on the papers.

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 as a visitor on 28 August 2015 and was permitted to stay until 27 September 2015. She did not depart and had overstayed since 28 September 2015. On 24 November 2015, she was arrested by the police for overstaying. On 4 January 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband Pidin Siniadi and some loan sharks.

5.In short, the applicant claimed that Pidin took out loans from the loan sharks for his business. However, he subsequently got into drinking and gambling problems and was unable to repay the loans. He also became abusive and demanded for money from the applicant. The applicant was unable to tolerate the assaults and decided to divorce him in 2004. The divorce was only settled in 2011. Nevertheless, when she was in Indonesia, Pidin would assault her, demand her to settle the loans and the loan sharks would also verbally threaten her. Her last contact with Pidin was in 2012 but she learnt from her sister that Pidin became the village head and still had the outstanding loans. Out of fear, the applicant stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 28 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

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 way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed risk of harm from Pidin or the loan sharks was groundless. In elaboration, the Director found that (i) Pidin and the loan sharks had no intention to harm or even kill her [14]-[16]; (ii) state protection would be available to her [17]-[21]; and (iii) internal relocation was a viable option [22]-[25].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 November 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries.

9.The Board noted that the applicant conceded at the hearing that the loan sharks ceased to threaten her after they took the family house in 2008. As a result, the Board found that there was no risk of harm from the loan sharks if the applicant returned to Indonesia [28]-[30]. Insofar as her claimed fear of harm from Pidin, while the Board accepted her accounts about the past experience, it refused to accept that Pidin had threatened the applicant for money from 2010 afterwards especially, on the applicant’s own evidence, Pidin had returned home with money and was then in an elected position [31]-[35]. Meanwhile, Pidin did not attempt to contact the applicant in any forms [36]. As a result, the Board found that there was no real risk of harm from Pidin if the applicant returned home [37].

10.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said that her country is not safe and her ex husband will kill her because she has no money to help him.

DISCUSSION

13.As mentioned in paragraph 1, the applicant’s application is seriously late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. The deadline for her to file Form 86 is 1 July 2018. The delay is about 9 months. The delay is therefore serious and her application can be dismissed as she has not given any explanation for the delay. I shall, nevertheless, first consider the merit of the applicant’s case.

14.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).

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

16.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.”

17.The Board found that there was no real risk of harm from Pidin if the applicant returned home. The grounds in paragraph 12 above do not assist her application. There is no valid reason to challenge the Board’s Decision.

18.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.

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

CONCLUSION

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

Dated the 21^st day of March 2023

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