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

HCAL 2968/2019

[2025] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2968 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board (“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 12 July 2019. Her application was filed on 9 October 2019, which was late for more than 2 months. This issue will be dealt with below.

2.The applicant requested a hearing. However, she was absent at the hearing on 31 March 2025. I shall deal with her application on the papers.

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 is a national of Indonesia. She last arrived to Hong Kong on 4 April 2014 as a domestic helper but when her contract was terminated prematurely, she overstayed since 30 April 2014. In due course, she lodged her non-refoulement claim.

5.The applicant’s claim was based on her fear of being harmed or killed by her brother because she did not give him money.

6.According to the applicant, there were money disputes between the applicant and her brother and she was threatened with death by him. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 22 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: the absence or low intensity and frequency of past ill-treatments is indicative of a small future risk of harm, past behaviours did not suggest the perceived harm from her brother as imminent and substantial, and the dispute is private and personal in nature [13-15]; state protection was available and the applicant would be afforded reasonable protection by the authorities [16-24]; and internal relocation alternatives were available, not unduly harsh and reasonable [25-29].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board conducted an oral hearing for her appeal, during which the Board found the applicant to be an evasive and unreliable witness [42].

10.Having considered the evidence, the Board found that the applicant gave inconsistent evidence, the applicant agreed that it was her own speculation that the police did not want to help her, and the applicant confirmed that her brother only made verbal threats to her [53-57]. In any event, the Board was satisfied that state protection was available based on the Country of Origin Information [58-64] and that internal relocation was available and reasonable [65-68]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

11.The applicant has filed Form 86 on 9 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affidavit in support of her application, the applicant exhibited the Board’s Decision and deposed that the Board disregarded her dangerous situation but no valid grounds were put forward. She did not explain why she was late in her application.

DISCUSSION

13.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.

14.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).

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

16.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.”

17.The applicant has failed to raise any valid ground to challenge the Board’s Decision.

18.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

19.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 and did not appear.