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

HCAL 170/2024

[2024] HKCFI 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 170 of 2024

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 19 June 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which is 19 September 2023. Her application was filed on 17 January 2024, which is almost 4 months late. 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”), I shall deal with her application on paper.

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, aged 39, is an Indonesian. She last arrived in Hong Kong on 12 September 2018 to work as a foreign domestic helper. Her contract was prematurely terminated on 23 February 2021 and she overstayed since 24 March 2021. The applicant was arrested for overstaying on 7 June 2022 and was sentenced to 20 days’ imprisonment suspended for 12 months on 10 June 2022. The applicant made a non-refoulement claim on 30 June 2022 and 8 August 2022. The claim was made on the basis that, if refouled, she would be harmed or even killed by her elder brother because of a family dispute.

5.According to the applicant, in 2019, her sister-in-law called her and told her that her elder brother had been abusing her. Her mother also often cried and complained to her about the abusive behaviour and the death threats made by her elder brother. The applicant tried to act as a middleman and talked to her elder brother. During the process, the applicant tried to defend her sister-in-law and her parents. She also told him to stop threatening her parents and discussed with him the way he raised his children as well as his sale of properties belonging to her in her parents’ house.

6.The applicant claimed that her elder brother became furious about her because of such conversation. He made his first serious threat in June 2020 when he told her not to talk too much or interfere his personal life. He also threatened to kill her when she returned to Indonesia if she did not stop what she was doing. A month later, the applicant’s elder brother made his second serious threat with similar content. After that, he kept repeating the same threat on the phone. The applicant had already stopped calling her elder brother.

7.During the applicant’s interview with the Immigration Officer, she claimed to have been beaten up by her elder brother before she came to Hong Kong. The assault occurred at her home and she sustained redness on her cheek. The applicant did not seek any medical assistance regarding the claimed assault.

8.The applicant considered internal relocation not viable because she had the experience of being found when she went elsewhere within Indonesia during her annual leave in 2016. She was also of the view that she could not get protection from the police or other government departments on matters concerning family dispute.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 October 2022 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the abusive behaviour of her elder brother was limited to verbal threats, indicating that he had no real intention to inflict harm or kill the applicant [12]; (ii) state protection will be available to her upon her return [14]-[19]; (iii) internal relocation is viable [13], [20]-[22] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[34] or Torture risk [35]-[37].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. The hearing was scheduled on 8 May 2023, which the applicant failed to attend. As the Board was satisfied that the Notice of Hearing had been duly served and there was no request from the applicant for rescheduling the hearing, the appeal was proceeded in her absence [56]-[60].

13.Given the absence of the applicant, the Board was unable to test her claims or evidence. Based on the available evidence, the Board was not satisfied that the applicant suffered serious or life-threatening harm from her elder brother. The Board also noted inconsistency in the applicant’s evidence, in which she claimed there was forced prostitution by her elder brother in the written submission on 8 August 2022, but she made no such claim in her written statement on 30 June 2022, her non-refoulement claim form or during her interview with the Immigration Officer [62]-[64].

14.The Board found no credible or persuasive evidence that the applicant faced a real risk of serious or fatal harm from her elder brother or anyone else if she returned to Indonesia. It was also of the view that her delay in seeking protection undermined her credibility. In any event, police protection was available according to the country of origin information [65]-[67], [70]-[72].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [73]-[76]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.The applicant has filed Form 86 dated 17 January 2024 for leave to apply for judicial review of the Board’s Decision.

17.In the applicant’s affirmation in support of her application, she did not raise any specific ground. Nor did she give any explanation for her delay in filing Form 86 for her application.

DISCUSSION

18.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. I shall consider the merits of the applicant’s case.

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

21.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.”

22.Under section 15 of Schedule 1A of the Ordinance, for the circumstances as stated by the Board, the Board may hear the case in the absence of the applicant.

23.The Court of Appeal in MS v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [2021] HKCA 979, Hon Barma, Au and G Lam JJA, 8 July 2021, held that even the applicant is absent, the Board “the Board should have assessed the substantive propositions of fact and make findings on them looking at the applicant’s case in the round. See SM (section 8: judge’s process) Iran [2005] UKIAT 00116; Re Hidayah [2018] HKCA 595 at [15]; TK v Michael Jenkins & anor [2013] 1 HKC 526 at [30]-[31].”

24.From the Board’s Decision, the Board had discharged its duty in accordance with guidance of the Court of Appeal. It rejected the applicant’s case after assessment of the evidence before it. See paragraphs 14-15, supra.

25.The applicant has raised no valid ground to challenge the Board’s Decision. In my view, the Board was entitled to form its conclusion as it had done.

26.The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

27.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 29^th day of April 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