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

HCAL 2262/2019

[2025] HKCFI 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2262 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 November 2018 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 expired on 26 February 2019. Her application was filed on 7 August 2019, which is more than one year and 5 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 40, came to Hong Kong to work as a domestic helper on 10 June 2010. Her employment terminated prematurely. She overstayed since 17 November 2010. She was arrested by police on 16 December 2010. She lodged a torture claim by way of a letter of 18 January 2021, which was rejected on 30 July 2013. On 8 August 2013, she lodged a non-refoulement claim on the basis that, if refouled, she would be harmed or killed by the creditor of her parents for the debt drawn by her parents.

5.According to the applicant, she worked in Singapore from 2019 and 2010. She returned to Indonesia in early 2020 and learned from her parents that they had drawn down a loan from a creditor. They were unable to repay. She was afraid that the creditor would hold her liable for the debt. She came to Hong Kong to work as domestic helper on 10 June 2010. She learned from her brother who was in Indonesia that the loan was RP50 million. Her brother also told her that she had to repay the loan or the creditor would kill her if she returned to Indonesia. She then lost contact with her brother and other family members.

The Director’s Decision

6.Since the applicant had made her torture claim and failed, the Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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, the Director dismissed the applicant’s claim. The Director found that: (i) the absence of past ill-treatment from the loan shark in the past is indicative of a low future risk of harm upon her return to Indonesia [16]; state protection will be available [17]; and internal alternative is viable [19]. Details of the applicant’s story are set out in paragraph 9 of the Notice of Decision dated 24 May 2018 (“the Director’s Decision”).

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 20 September 2018, the Board conducted an oral hearing.

9.Having considered the applicant’s evidence, the Board found:

“61. …The Adjudicator, after considering the totality of the evidence and the claims, that have been considered and discussed, does not accept that the Petitioner is a credible witness or that aspects of her claims are creditable.”

10.The Board therefore rejected her evidence that her parents were in debt or she was threatened to repay the loan.

11.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

13.The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

14.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.

15.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).

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

17.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.”

18.The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Court has no reason to interfere with it.

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

DISPOSITION

20.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.

The applicant was unrepresented.