Satini Nur Findriani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 285/2024

[2024] HKCFI 1338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 285 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 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 27 October 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 27 January 2024.  Her application was filed on 6 February 2024, which is 10 days only.  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 15 April 2024.

The applicant

3.The applicant, aged 44, is an Indonesian.  She arrived in Hong Kong on 16 August 2004 to work as a foreign domestic helper.  Her contract was prematurely terminated in 2009 and she overstayed since then.  The applicant was arrested for overstaying on 22 November 2022 and she was sentenced to imprisonment of 15 months on 25 November 2022.  The applicant made a non-refoulement claim on 14 February 2023.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her parents because she had converted from a Buddhist to a Muslim contrary to their wishes.

4.According to the applicant, she came from a Buddhist family.  She first leant about Muslim when she was 11.  In 1995, at the age of 15, she followed a Muslim friend to a Mosque and became a Muslim in front of an imam.  She did not tell her parents about converting to Muslim, as she knew that they would not agree.  She stopped visiting Buddhist temple with her parents using different excuses.  Instead, she worshipped in her room while wearing white Muslim dress.  She also attended Muslim mosque weekly.

5.About two weeks later, the applicant’s parents discovered that she was praying in her white Muslim dress in her room.  They were very angry and quarreled with her.  Her father even slapped her face four times and told her that she had to leave if she did not believe in Buddhism.  The applicant’s neighbour heard their argument and took the applicant away to her home.  The applicant did not report the incident to the police, nor did she seek any medical treatment.  She went back home twice thereafter trying to convince her parents to accept her conversion to Muslim.  Yet her father maintained that she had to be a Buddhist if she wanted to stay at home.  He even threatened to kill her if she continued to be a Muslim.  Fearing for her safety, the applicant returned to her neighbour’s home and stayed there for about a year.

6.In 1996, the applicant went to work as a domestic helper in Jakarta.  She returned to her hometown in 1997 and stayed with a friend for two years.  Between March 1999 and December 2003, she worked as a foreign domestic helper in Singapore, after which she returned to her hometown and stayed in her friend’s home.  In August 2004, the applicant started working as a foreign domestic helper in Hong Kong until the termination of her employment contract in 2009.  Thereafter she overstayed until she was arrested.

7.The applicant had not communicated with her family since 1995 after she failed to convince them twice to accept her conversion to Muslim.  She thought her parents were very stubborn and would still harm her.

8.The applicant was of the view that she could not get assistance from the police because they would only take action upon receiving bribe and that they would not intervene in private family matters.  She also considered internal relocation not viable because she did not have the money or any friend/relative elsewhere within Indonesia.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 May 2023 (“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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the low intensity and frequency of past ill-treatment from her parents indicated that she would not face a real or imminent risk of harm.  The Director also had doubts towards the applicant’s credibility given her significant delay in seeking non-refoulement protection [13].

10.In any event, (i) state protection will be available to her upon her return [14] - [18]; (ii) internal relocation is viable [19] - [20] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [21] - [26], Persecution risk [27] - [31] or Torture risk [32] - [35].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  On 10 October 2023, the Board conducted an oral hearing.

12.The Board found the applicant’s explanation for her significant delay in making a non-refoulement claim unreliable.  The claim that her neighbour who lived about 30 minutes’ drive from her home took her away after she heard her argument with her parents was also implausible [37].

13.The Board found the applicant dishonest and that she is not a genuine claimant.  They were not convinced that she overstayed due to the claimed threat from her parents [38].  They concluded that the applicant’s case failed to meet any of the requirements under Torture risk [25] - [35], [40] - [48], [51] - [52], BOR 2 and BOR 3 risk [53] - [59] or Persecution risk [60] - [68].  In any event, internal relocation and state protection were available to her taking into account the country of origin information [37], [49] - [50], [69] - [74].

14.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

15.The applicant has filed Form 86 dated 6 February 2024 for leave to apply for judicial review of the Board’s Decision.

16.In a separate written submission, the applicant reiterated the reasons she came to Hong Kong and if she returns to Indonesia, her life will be in danger because of conversion of her religion.

DISCUSSION

17.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.

18.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).

19.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that she did not think that the Board was wrong.  But she said she wants to stay in Hong Kong.

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.As the applicant agreed before this Court that she did not consider that the Board was wrong, there is nothing from the applicant to challenge the Board’s Deciion.

22.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

23.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 30^th day of May 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