Maya Setianingrum Jumbadi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 961/2019

[2023] HKCFI 1358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 961 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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dismissing her appeal against the Director’s Second Decision as described below (the “Board’s Second Decision”).

2.The applicant had previously made an application for leave to apply for judicial review against the Board’s decision dated 27 February 2017 dismissing her appeal against the Director’s First Decision as described below (the “Board’s First Decision”). Her leave application was refused. By way of a judgment dated 27 November 2018 [2018] HKCA 870, the Court of Appeal also rejected her appeal (the “CA Dismissal”).

3.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.

4.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

5.The applicant is a national of Indonesia. Her immigration history, her claim, and her personal background were summarized at paragraphs 2 to 5 of the CA Dismissal. I shall not repeat and would only briefly highlight those relevant to this application. In short, the applicant claimed that, if refouled, she would be harmed or killed by the loan sharks because her husband forged her signature to borrow the loans.

The Director’s Decisions and the Board’s First Decision

6.On 21 August 2015, the Director rejected her claim on BOR 3 risk[1] and persecution risk[2] (the “Director’s First Decision”). On 24 April 2017, the Director also considered the applicant’s non-refoulement claim under BOR 2 risk[3]. Having considered the evidence, the Director found that the applicant’s right to life would not be violated and dismissed the applicant’s claim under BOR 2 risk (the “Director’s Second Decision”).

7.Thereafter, the applicant appealed the Director’s First Decision to the Board. For reasons set out in the Board’s First Decision, the Board rejected her appeal after an oral hearing, finding that state protection and internal relocation were both available for the applicant.

The Board’s BOR 2 Decision

8.On 27 November 2017, the applicant appealed the Director’s Second Decision to the Board. She was out of time for more than 6 months. As a result, the Board proceeded to determine whether to allow the applicant’s late filing of notice of appeal/petition on paper [5].

9.The Board rejected the applicant’s explanation for the delay as it was her responsibility to inform the authorities about the change of address [8]. Meanwhile, in light of the findings in the Board’s First Decision, the Board found that the applicant’s claim under BOR 2 risk equally had no merits. It would be futile to extend time [11]-[12]. Thus, by way of the Board’s Second Decision, the Board refused to allow the applicant’s late filing of appeal against the Director’s Second Decision.

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

10.The applicant has filed Form 86 dated 9 April 2019 for leave to apply for judicial review of the Board’s Second Decision. The Board’s First Decision has become final.

11.In her affirmation in support of her application and her subsequent letter dated 7 February 2023, the applicant set out the following grounds:

(1)  procedural impropriety: failure to consider that her claim had been refused by the Director and her problems remain, and failed to provide sufficient opportunity for her to clarify her BOR 2 claim and dismissed her appeal without enquiry into the country of origin information (“COI”) that she would not have state protection or a hearing; and

(2)  error/misdirection in law: failure to consider BOR 2 provision that every human being has right to life and her life will be in danger if she returns to Indonesia.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Second 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).

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

14.The question for this Court is whether the Board’s Second Decision of refusing to extend time to the applicant to file her notice of appeal complies with the public law requirements.

15.The Board had considered the merits in the Board’s First Decision and came to the conclusion that the applicant’s claim on BOR 2 risk was without merits. This conclusion is correct. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

16.The grounds in paragraph 11 do not assist the applicant’s application. Ground (1) is a non-point as the tribunal had considered the COI and may dispose of her appeal without a hearing[4] under section 12 of Schedule 1A of the Ordinance. Ground (2) is her personal opinions without any evidence in support.

17.There is no valid reason to challenge the Board’s Second Decision.

18.The Court does not find any error of law or procedural unfairness in the Board’s Second 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 grant leave to the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss her application.

Dated the 31^st day of May 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