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

HCAL 1945/2020

[2023] HKCFI 2886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1945 of 2020

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 present 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 31 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. I shall deal with this issue below.

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 1 November 2023.

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 date of the Board’s Decision is 31 July 2019 instead of 21 July 2020. 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. Since 2011, she had worked as a domestic helper in Hong Kong until May 2013 where she was arrested for impersonating another domestic helper to apply for a replacement of Hong Kong Identity Card. She was convicted of the offence of conspiracy to defraud and was sentenced to 12 months’ imprisonment. On 24 Jul 2013, she lodged her torture claim which was rejected by the immigration officer on 23 December 2013. She then lodged her non-refoulement claim by a written signification on 27 August 2013 on the ground that if refouled, she would be harmed or killed by her husband and the loan shark who had lent money to her husband.

5.Briefly, the applicant’s husband is a drug addict with hot temper. Whenever she asked him if he was addicted, he hit her. He had also joined a drug syndicate too. He had borrowed money from the loan shark for his drug consumption. The loan shark is a woman who had come to her house and threatened them that if the loans were not repaid, she would take over the house. But this had never realized. In 2011, she came to Hong Kong for work. She remitted her wages to her husband who looked after her son. She was informed by her brother that her husband had been living with other women. But she does not want to divorce him as she fears him and her son is being looked after by him. She does not believe police will protect her and she cannot relocate to other places if she returns to Indonesia because she has no money. Details of her story can be found in paragraph 8 of the Director’s Notice of Decision dated 28 December 2018 (“the Director’s Decision”).

The Director’s Decision

6.The applicant had applied to the Director for torture claim and her application was rejected. The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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 on the above applicable risks. The Director found that (i) the low intensity of the past ill-treatments indicated a low future risk of harm upon refoulement [14]-[17]; (ii) state protection would be available to her [18]-[21]; and (iii) internal relocation was a viable option [22]-[23]. The applicant appealed the Director’s Decision to the Board.

The Board’s Decision

8.On 24 June 2019, the Board held a hearing where the applicant attended and gave oral evidence.

9.Having considered the evidence, the Board found that there were several inconsistencies between her oral evidence during the hearing and her previous evidence which raised some concerns about her claimed problems with her husband. [51] – [58] The Board therefore found that there is not a real risk the applicant will face any of the proscribed forms of harm from her husband should she return to Indonesia. [59] Also, the Board did not accept that the applicant will face any harm from a loan shark that she claimed her husband borrowed money from. [60] The Board further found that internal relocation is a viable option for the applicant. [62] – [68] The Board thus dismissed her appeal.

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

10.The applicant has filed Form 86 dated 28 September 2020 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

12.As mentioned in paragraph 1, 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.

13.The deadline of her application relating to the Board’s Decision is on 31 October 2019. The delay is about 11 months. She has given no explanation for her delay and her application can be dismissed on this basis alone. Nevertheless, I shall first consider the merits 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 decisions 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 had, for the reasons given in paragraph 9, found that the applicant will not face any of the applicable risks if she returns to Indonesia. There is no valid reason from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.Therefore, 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 21^st day of November 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