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

HCAL 2287/2020

[2024] HKCFI 462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2287 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 absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  The extension of time for the application for Judicial Review of the Board’s First Decision 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 22 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s First Decision”), which is on the torture claim. Her application filed on 19 November 2020 is seriously 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”), a hearing was fixed for her on 18 July 2023. However, she was absent without prior notice to Court. I shall deal with her application on paper.

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 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. She entered Hong Kong on 19 December 2008 as a foreign domestic helper and was permitted to remain until 19 December 2010. However, her employment contract was prematurely terminated in December 2008. She did not depart within two weeks and had overstayed. On 12 November 2010, she was arrested by the police. On 5 April 2013, she lodged a non-refoulement claim. As she had previously raised a torture claim which was rejected, her claim would be assessed on all applicable grounds other than that on torture risk[1]. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Mr Sumarwan.

5.In short, the applicant’s fear of risk of harm originated from an outstanding debt she borrowed from Sumarwan in 2005 for her canteen business. Originally, the applicant was able to repay the monthly interests. In mid-2006, her business went bankrupt and she defaulted the loan. The threats from Sumarwan started in 2006. While he extended the deadline of loan payment to late 2007, the applicant was still unable to settle the loan. In October 2007, Sumarwan demanded the applicant to marry him if she could not repay. The applicant asked for extension until 2008 which he granted. Thereafter, in March or April 2008, Sumarwan visited the applicant again for the repayment. The applicant stated that she would work in Hong Kong and remit the money to repay the loan. Sumarwan again agreed. However, her employment contract was terminated in December 2008. As she heard from her parents that Sumarwan continued to harass them, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 31 August 2017 by the Director.

The Director’s Decisions

6.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”).

7.By way of the Director’s Decision dated 31 May 2013 (“the Director’s First Decision”), the Director dismissed the applicant’s claim on Torture risk. By way of the Director’s Decision dated 31 August 2017 (“the Director’s Second Decision”), the Director rejected the applicant’s claim on BOR 2 risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the absence of past ill-treatments indicated a low future risk of harm upon refoulement [16]-[19]; (ii) state protection would be available to her [20]-[26]; and (iii) internal relocation was a viable option [27]-[31].

The Board’s First Decision

8.On 8 March 2017, the applicant filed a notice of appeal/petition against the Director’s First Decision. The Director’s First Decision was sent to the applicant on 31 May 2013 and the deadline for filing the appeal of appeal was on 17 June 2013. The applicant was therefore more than 3.5 years out of time [3].

9.The Board noted that the applicant failed to provide any reasons for such significant delay [4]-[5]. The only explanation was in the applicant’s letters to the Board that she had lost contact with the Duty Lawyer Service and that she had no money to contact them [15].

10.Having examined the circumstances, the Board refused to accept the applicant’s explanations [17]-[19]. It also found that there were no matters known to the Board in the applicant’s claim that would amount to special circumstances [21]. In these premises, on 22 December 2017, the Board refused to allow the applicant’s late filing (the “Board’s First Decision”).

The Board’s Second Decision

11.Later, the applicant also appealed the Director’s Second Decision to the Board. On 15 May 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [51].

12.The Board recapped the applicant’s claim, her personal background as well as the relevant country of origin information (“COI”) [9]-[40]. It also took into account the applicant’s clarifications [51].

13.Having considered the evidence, the Board rejected her claim. The Board found that the creditor was not a state agent and the applicant could seek protection from the Indonesian police [54]-[59] and COI also supported the finding of availability of internal relocation [60]. Meanwhile, the Board found that the applicant’s evidence was not credible [61]-[62].

14.In these circumstances, by the Board’s Second Decision, the Board found that the applicant’s claim on the BOR 2 risk, the BOR 3 risk and the Persecution risk was not substantiated and thus, by Decision dated 5 June 2018 (“the Board’s Second Decision”) dismissed her appeal.

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

15.The applicant has filed Form 86 dated 19 November 2020 for leave to apply for judicial review of the Board’s First Decision.

16.In her affirmation in support of her application, the applicant argued that the Director’s decisions rejecting her application was wrong. She submitted that the Director had not been to her country to understand the situation there and the immigration officer is invited to go there to make inquiry.

DISCUSSION

17.The Board’s First Decision only deals with the applicant’s torture claim. She was out of time to file the notice of appeal with the Board. The Board refused to accept her reasons for the delay and therefore did not allow her to file the notice of appeal out of time. The Board did not consider the merits of her claim. By virtue of the decisions of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, where the Court of Appeal held that “20. …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

18.It is therefore obvious that on this issue alone, leave should be given to the applicant for judicial review of the Board’s First Decision.

19.However, the shortcomings of the Board in its First Decision has been remedied by the Board’s Second Decision, which had taken into consideration the facts of the applicant’s case. The question of whether the applicant has any realistic chance of success in her leave application against the Board’s First Decision has to be considered together with the Board’s Second Decision.

20.Although the applicant had only applied for leave for judicial review of the Board’s First Decision, this Court should take into consideration of the Board’s Second Decision in considering whether leave should be granted to her for judicial review of the Board’s First Decision.

21.For these reasons, I decide to take into consideration of the Board’s Second Decision.

22.Even taking into consideration of the Board’s Second Decision, the applicant is still late in her filing of the notice of appeal.

23.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.

24.The deadline of her application relating to the Board’s Second Decision is on 5 September 2018. The delay is more than 2 years. 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.

25.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).

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

27.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.”

28.The Board had considered applicant’s evidence and did not believe it. As to the applicant’s suggestion of calling the immigration officer to go to her country to understand her situation, it is unnecessary for the immigration officer to go there physically because he can simply rely upon the COI. The applicant was therefore unable to establish that she will be subjected to any real risk of harm if she returns to Indonesia. She has not raised any valid ground to challenge the Board’s Second Decision.

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

CONCLUSION

30.Therefore, I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s First Decision. Accordingly, I dismiss her application.

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