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

HCAL 754/2022

[2024] HKCFI 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 754 of 2022

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:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 4 August 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 30 October 2023.

The applicant

3.The applicant, aged 34, is a national of Indonesia. She came to Hong Kong and worked as a domestic helper in 2016. Her employment contract was prematurely terminated. She was also arrested for theft and was sentenced to imprisonment. She lodged her non-refoulement claim in January 2018. After discharge from prison, she is being detained in the Castle Peak Immigration Centre.

4.Briefly stated, the applicant states that she is in fear of the risk of being harmed or killed by a loan shark and his underlings upon return to Indonesia because she failed to settle her father’s loan. Her father is a heavy gambler, who owed the loan shark about 180 million Indonesian Rupiah. The loan shark produced a loan document, saying that her father had made her the guarantor. She lived with her aunt. They carried on business of selling food and phone cards. In May 2009, the loan shark went to her aunt’s home with some underlings to demand payment of money. The paid the loan shark some money from time to time. Whenever they did not have money to repay him, the loan shark threatened to kill her. On one occasion, the loan shark and his underlings had kidnapped her younger brother and sister. They were released after the applicant paid him one million Indonesian Rupiah. In August 2013, the applicant went to work in Singapore. In 2015, she returned to Indonesia. The loan shark came twice to her house and threatened her at knife-point that if she did not repay the debt, they would kill her. In 2016, she came to Hong Kong as a domestic helper. She considers that police in Indonesia cannot protect her as they are corrupt and incompetent. She cannot relocate herself as she has no money or friends to support her. Details of her story can be seen in paragraph 6 of the Notice of Decision dated 15 May 2018 of 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 the applicant’s claim. The Director found that: (1) there was no evidence for believing that her perceived fear was real and foreseeable [10]; (2) state protection was available to her [12]; and (3) internal relocation was available to her [13].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. She filed her notice of appeal on 19 May 2022, which is over 3 years and 11 months out of time [6]. The time limit is based on the computation that the Director’s Decision was served on the applicant’s duty lawyer on 15 May 2018 and the applicant has to file the notice of appeal within 14 days after service of the Director’s Decision. The time limit for the applicant to file her notice of appeal therefore expires on 31 May 2018, pursuant to section 37 ZV(1) and (2) of the Ordinance [5].

8.In section 5 of the notice of appeal, the applicant stated:

“in the past I lost the decision document, and I don’t know how to appeal. I already got a decision from Kowloon Bay skytower on May 17 2022. I beg sir/madam” (the “Reason for Delay”)”

9.The applicant did not produce any evidence to show that she had made effort to file her notice of appeal within the appeal period. Nor was there any evidence to show that there were circumstances beyond her control, which made it not possible for her to file her notice of appeal within time. The Board therefore found that the applicant had failed to comply with section 37ZT(2) and paragraph 9.2 of the Petition Guide (6^th Ed.) and thus refused to extend time for the applicant to file her notice of appeal. In effect, the applicant was unable to file her notice of appeal and her appeal failed.

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

10.The applicant has filed Form 86 dated 12 August 2022 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, the applicant submitted that there are many errors in the Board’s Decision. She did not point out those errors.

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 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 Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she wants the Court to re-consider her case.

14.The question before this Court is whether the Board is correct not to extend time for the applicant to file her notice of appeal under the circumstances.

15.The Court of Appeal in Re: Kamaljeet Singh [2023] HKCA 1195, Hon Chu VP and G Lam JA in court, 16 October 2023 held:

“17. The statutory 14-day time limit for appealing a decision by the Director to reject a non-refoulement claim is prescribed by s 37ZS(1) of the Immigration Ordinance (Cap 115), which provides (and provided at the time in 2015):

‘37ZS. Notice of appeal

(1) A person who wishes to appeal against a decision referred to in section 37ZR must file with the Appeal Board a notice of appeal within 14 days after notice of the decision is given to the person unless late filing of the notice is allowed by the Board under section 37ZT(3).

18. It is notable that s 37ZS(1) provides that the 14-day period begins on the day after the Director’s notice of decision is given to the non-refoulement claimant, not on the day after the decision is issued.

19. Section 37ZV(1) provided (in 2015) that a notice required to be served or given by the Director on or to a person under that Part of the Ordinance could be served on or given to that person personally, or by leaving it for him, or sending it by post to him, or, where the person was acting by a legal representative, by leaving it for or sending it by post to the legal representative.”

16.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)”

17.The Board was satisfied that the Director’s Decision had been duly served on the applicant. The explanation given by the applicant for her delay is clearly not acceptable. The Court should not interfere with the Board’s decision not to accept her explanation.

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

CONCLUSION

19.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 23^rd 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