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

HCAL 354/2023

[2023] HKCFI 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 354 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:

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

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

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 23 November 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The application filed on 8 March 2023 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.

The applicant

3.The applicant is a national of Indonesia. She last entered Hong Kong as a foreign domestic helper on 11 December 2019 and was permitted to remain until 22 January 2022, or two weeks after the termination of her employment contract, whichever was earlier. On 15 August 2020, her employment contract was terminated prematurely. She did not depart within the time limit and had overstayed since 30 August 2020. On 8 October 2020, she was arrested by the police. On 10 October 2020, she sought to lodge a non-refoulement claim but no further action was taken. On 11 July 2022, she again lodged her claim and this time her claim was resumed and processed. The basis of her claim was on a fear of risk of harm from a loan shark due to an outstanding debt.

4.In brevity, the applicant borrowed the loan for her brother’s surgery in mid-2019. After taking out the loan, the applicant returned to Hong Kong for her employment. On January 2020, her parents reminded her of the due date of the first interest installment. She therefore remitted part of her salary to her parents and later did the same on a regular monthly basis. Yet, the money was used on her brother’s medical expenses. In August 2020, the applicant’s employment contract was terminated and she started to default the repayments. Since then, she had been directly threatened by the loan shark or through her parents that he would kill her if she failed to settle the loan. Despite she was not physically harmed by the loan shark, the applicant feared that the verbal death threats would materialize and decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 August 2022 by the Director (the “Director’s Decision).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed her claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (ii) there was no evidence that the loan shark intended to seriously harm or even kill her [15]; (iii) her past behaviors were inconsistent with someone who had a genuine fear of harm [16]; (iv) there was no evidence that the loan shark could locate her elsewhere [17]; (v) state protection would be available to her [18]-[23]; and (vi) internal relocation was a viable option [24]-[26].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 9 November 2022, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter qualified in the Bahasa Indonesia and English languages [7].

8.At the outset, the Board considered that the applicant’s failure to take advantage of all the opportunities she had to claim protection was a behavior that was detrimental to her credibility [27]. Having considered all the evidence, the Board found that her claim was fraught with inconsistencies and omissions [41]. For example, the applicant stated, for the first time at the hearing, that she provided collateral as security for the loan [42]. In the circumstance, the loan shark could seize the security as settlement of the loan and it was unlikely that the loan shark would continue to pursue her if she returned [43]. Meanwhile, the applicant conceded that it was a mere speculation on her part to state that the police or the government would not offer protection [44]. In addition, the Board found that there was no evidence to support her claim that the loan shark would harm or even kill her; that she would face risk of harm throughout her home country; that she sustained injuries that attained the requisite level of severity; and that the state would not offer protection to her [45]. In fact, the country of origin information indicated that state protection would be available to her [59]-[64]. In passing, the Board also found that internal relocation was a viable alternative [84]-[91].

9.For the aforesaid 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

10.The applicant has filed Form 86 on 8 March 2023 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said she asked for life protection.

DISCUSSION

12.As mentioned in paragraph 1, the applicant’s application is 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 23 February 2023. The delay is about 2 weeks. I shall now consider the merits of the applicant’s case.

13.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).

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

15.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.”

16.The Board has, for the reasons given above, rejected the applicant’s evidence. The applicant has not raised any valid reason to challenge the Board’s Decision.

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

CONCLUSION

18.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 15^th day of August 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