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

HCAL 1508/2020

[2024] HKCFI 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1508 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. This issue will be dealt with below.

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 20 November 2023.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of the Indonesia. She came to Hong Kong and worked as a domestic helper. Her last employment contract was prematurely terminated on 11 June 2009. But she overstayed since 26 June 2009. She was arrested by police of overstaying and possessing a Hong Kong Identity Card belonging to another person. She was convicted and sentenced to 15 months’ imprisonment. She was discharged on 17 July 2010. She did not answer her recognizance and is now being detained in the Castle Peak Bay Immigration Centre.

5.On 16 September 2014, she submitted a written signification to request for non-refoulement protection on the ground that, if refouled, she will be harmed or killed by her step-father, Yanto and his creditor, Riko because she refused to marry Riko as repayment of Yanto’s loan.

6.In short, Yanto was very angry when she refused to marry Riko. He had, on a number of occasions, beat her with broom and pulled her hair. On one occasion in 2007, Yanto poured boiling water at her and her arm sustained burn wounds. Riko had, on a number of occasions, attempted to rape her but was in vain. He beat her and slapped her face. She did not believe the police would protect her. Nor did she consider she could relocate herself to places like Jakarta as it has a lot of crime and it is difficult for her to find a job there. Details of her story are set out in paragraph 8 of the Director’s Decision.

The Director’s Decisions

7.As the applicant had made her claim on torture risk and 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”).

8.By way of the Director’s Notice of Decision dated 13 May 2015, the Director dismissed the applicant’s claim on BOR 3 risk and Persecution risk.

9.By way of the Director’s Notice of Further Decision dated 19 June 2017, the Director dismissed the applicant’s claim on BOR 2 risk.

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. The Board fixed a hearing on 14 February 2018 for her. However, despite attempts by the staff of the Board to contact her on the day before the hearing and also on the day of hearing, she was nowhere to be found. A statutory notice was sent to her asking her to give written explanation for her absence. But she did not reply to the notice. In the circumstances, the Board had assessed her appeal on the evidence available.

11.Having considered the applicant’s evidence, the Board made the findings below:

“9. I do not accept that Y or R of 10 years ago are interested in locating the Appellant all over Indonesia, …I find no substantial risk or any substantial basis of fear. There are many places in Indonesia, at least other than the Appellant’s home village, where a 35-year-old and able-bodied young woman with work experience she can safely live without undue hardship… .

13. The Appellant, despite encountering with her enemies, has not suffered serious ill-treatment or severe injury or serious harm which would place her at any substantial risk of CIDTP in the future. In other words her future risk is remote. Furthermore the COI shows reasonable availability of State protection from such harm. The situation falls far short of establishing CIDTP, hence the appeal fails under BOR 3 risk.

19. …the situation falls far short of establishing ‘Persecution Risk’ ”

12.The Board further took into account of the fact that state protection would be available to her [7]; that the applicant did not seek protection when she first became an illegal immigrant and the fact that she had been convicted of the offence of being in possession of a Hong Kong Identity Card belonging to another person and her refusal of allowing her information given to the UNHCR to be released to the Immigration Department as the reasons to discredit her credibility of her evidence [22] – [23].

13.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

14.The applicant has filed Form 86 dated 16 July 2020 for leave to apply for judicial review of the Board’s Decision.

15.The applicant said in her affirmation that she did not receive the Court’s letter. She had changed her address, which she had informed the Director. But she did not know that she had to inform the Court.

DISCUSSION

16.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.

17.The deadline of his application is on 2 August 2018. The delay is almost 2 years. Her explanation in her affirmation is not a valid reason for her delay, especially her delay is long. Nevertheless, I shall first consider the merits of the applicant’s case.

18.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).

19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she had nothing further to say about her application for leave to apply for judicial review.

20.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.”

21.For the reasons given in paragraphs 11 & 12 above, the Board found that the applicant’s evidence was not credible and; even if accepted, she failed to establish that she has any real risk of harm as she alleged if she returns to Indonesia. The Board was quite entitled to form such views on the evidence available to it.

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

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

CONCLUSION

24.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 9^th day of January 2024

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