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

HCAL 290/2024 [2024]

HKCFI 2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 290 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 26 September 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 26 December 2023. Her application was filed on 7 February 2024, which is late for about one and a half months. 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.

The applicant

3.The applicant, aged 45, is an Indonesian. She last arrived in Hong Kong to work as a domestic helper on 17 March 2020 and overstayed since 24 April 2022. She was arrested by the police on 3 September 2022 for overstaying and was re-arrested by the police on 13 October 2022 for failing to show up. She was convicted of the offence for breach of condition of stay and was sentenced to imprisonment for 9 days suspended for 12 months on 19 October 2022. On 10 March 2023, the applicant was arrested by the police again for failing to show up and has since been detained at the Castle Peak Immigration Centre.

4.The applicant made a non-refoulement claim on 27 March 2023 and 30 March 2023. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-husband.

5.According to the applicant, she married her ex-husband in about 1995. He was a member of Partai Kebangkitan Bangsa (“PKB”), which formed part of the coalition government. Her ex-husband was bad tempered and would easily get agitated over trivial matters. He would physically abuse the applicant by punching her with his bare hands whenever he was unhappy. On one or two occasions, the applicant escaped and hid at her parents’ house. Her ex-husband then came over and persuaded her to go home with him by promising never to harm her again. However, he did not keep his word and continued abusing her.

6.The applicant later went to Jakarta to work for two years. Later, she went to work in Malaysia and Singapore to avoid her ex-husband. Thereafter, she returned to Indonesia and lived with her ex-husband.

7.In about 2017 before the applicant came to Hong Kong, she requested a divorce because she could no longer bear with her ex-husband. However, he rejected her request and became even more hostile. Her ex-husband assaulted her while she was still in Indonesia. After the applicant came to Hong Kong on 1 November 2017, he insulted her over the phone and threatened to kill her whenever she proposed a divorce with him.

8.In around 2019, the applicant’s ex-husband agreed a divorce. Despite so, he still held a strong grudge against her. During the applicant’s last phone call with her ex-husband in 2019, he threatened to seriously harm or even kill her upon her return to Indonesia. He also forbade her from seeing her children ever again. Since then, the applicant’s ex-husband blocked her on the phone and she never heard from him directly again.

9.The applicant’s family ceased contacting the applicant after her divorce in 2019 because they were afraid to be harmed by her ex-husband if he found out that they kept in touch with her.

10.The applicant was of the view that she could not seek protection from the police because they were corrupted and worked in favour of rich and powerful people. Given her ex-husband’s membership in PKB, he would be covered up by the police. The applicant also considered internal relocation not viable because she had no connection elsewhere in the country and had no money to relocate. She also worried that her ex-husband would be able to locate her through his connections with PKB.

11.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 12 May 2023 (“the Director’s Decision”).

The Director’s Decision

12.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”).

12.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the applicant’s ex-husband had no real intention to seriously harm or kill her, so that she would not face an imminent danger upon return to Indonesia [13]; (ii) state protection would be available to her upon her return [15], [17] - [23]; (iii) internal relocation would be viable [14], [24] - [28] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29] - [34], Persecution risk [35] - [39] or Torture risk [40] - [43].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 19 September 2023, the Board conducted an oral hearing.

14.The Board was convinced on the balance of probabilities that the account of events given by the applicant was credible [39]. However, the Board was of the view that the low intensity of harm brought by the applicant’s ex-husband indicated that he only aimed to threaten the applicant, but had no real intention to seriously harm or kill her. The applicant therefore faced no genuine and substantial [40] - [41]. In any event, state protection and internal relocation were available to her according to the country of origin information [42] - [46].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [9] - [14], [47] - [48], Persecution risk [15] - [16], [49] or Torture risk [17] - [22], [50]. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

16.The applicant has filed Form 86 on 7 February 2024 to apply for leave to apply for judicial review of the Board’s Decision.

17.In her affirmation in support of her application, the applicant said her life is in danger in her country. She did not raise any specific ground.

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.The Board accepted the alleged facts that the applicant was maltreated by her husband. However, for the reasons given in paragraph 14, the Board came to its view that she would not be subjected to any real risk of being harm if she returned to Indonesia. Those reasons seem to be sustainable and logical. The applicant has raised no valid reason to challenge the Board’s views and this Court has no reason to interfere with the Board’s Decision.

23.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

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 27^th day of August 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