Fadilah Binti Nasir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 671/2023

[2023] HKCFI 1652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 671 of 2023

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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 14 April 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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

The applicant

3.The applicant is a national of Indonesia.  She had been a foreign domestic helper in Hong Kong and her last employment contract permitted her to stay until 30 September 2016.  However, the employment contract was prematurely terminated on 14 March 2015.  She did not depart within two weeks after the termination of her employment contract and had overstayed since 31 March 2015.  On 15 April 2015, she surrendered to the Immigration Department. On 5 June 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her mother. 

4.The applicant’s claimed risk of harm was from her abusive mother.  According to the applicant, her parents always quarreled.  In around March 2005, her family found out that her mother took out loans for gambling debt.  There were visits from the bank staff and the police officers, as well as unknown people, to chase the repayment.  In around May 2005, their house was confiscated by the bank.  In late 2005, her father left with her siblings while the applicant stayed with her mother as she had the ability to work. 

5.In July 2006, the applicant’s mother attempted to sell her to a man in the gambling parlour but she escaped.  Since the incident, her mother’s abuse became physical.  The first attack happened after the applicant escaped back home.  Her mother attacked her with a wooden stick until she fainted.  Later, in August or September 2006, she irritated her mother for being slow in boiling her mother’s shower water.  She hit the applicant with the burning wood tip and injured the applicant’s right arm.  The next morning, she again hit the applicant with an empty glass bottle.  

6.A few weeks later, when the applicant accidently touched her mother’s feet while mopping the floor, she was hit at the right ankle by her mother with a sharp object.  Meanwhile, the debt collectors continued to visit them. Thereafter, the applicant had been to overseas employments.  Yet, in August 2012, when she returned to work in Indonesia, she would be assaulted by her mother whenever her mother was angry.  After the applicant came to Hong Kong, her mother continued to threaten to harm her father and siblings if she failed to remit the salary to her.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claims are set out at paragraph 7 of the Notice of Decision dated 2 December 2016 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the past events indicated that the claimed risk of harm from the applicant’s mother was assessed to be low [14]-[16]; (ii) state protection would be available to her [17]-[18]; and (iii) internal relocation was a viable option [19]-[20].

The Board’s Decision

9.On 2 March 2023, the applicant appealed the Director’s Decision to the Board.  Significantly, her notice of appeal/petition was out of time for 6 years and 2.5 months [11].  As a result, the Board proceeded to consider whether a time extension should be granted under section 37ZT of the Immigration Ordinance.

10.The Board considered the applicant’s reasons for delay [18]-[20].  It also considered the applicant’s grounds of appeal/petition [21].  It noted that the applicant did not produce any evidence to support her reasons of delay [22]. 

11.Having considered the circumstances, the Board noted that the applicant did not claim that she did not receive the Director’s Decision.  The gist of her reasons for delay was lack of understanding/knowledge and the lack of funds [23].  The Board found that the applicant had failed to exercise due diligence to file her notice of appeal/petition.  While the applicant was in detention, it was a very recent change in her liberty status [26].  Her explanation of lack of knowledge and lack of fund to file the notice of appeal/petition was unacceptable as she had legal assistance from the duty lawyer service free of charge at the time the Director’s Decision was served on her [27]-[31]. 

12.Therefore, the Board found that the delay was significant and there was no circumstance that beyond the applicant’s control to file the notice of appeal/petition on time [32].  As a result, the Board refused to grant her time extension to challenge the Director’s Decision.

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

13.The applicant has filed Form 86 dated 8 May 2023 for leave to apply for judicial review of the Board’s Decision.

14.In her affidavit in support of her application, the applicant did not set out any specific ground.

DISCUSSION

15.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).

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

17.The question before this court is whether the Board is justified to dismiss the applicant’s application for extension of time to file her notice of appeal with the Board.

18.Section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

19.The Board has, in paragraph 11, supra, given its reasons for refusing to extend time for the applicant to file her notice of appeal.

20.The applicant has raised no valid ground to challenge the Board’s Decision.

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

CONCLUSION

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

Dated the 30^th day of June 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