MESIYATI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1885/2018

[2020] HKCFI 1878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1885 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1)      Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 14 May 2018 be refused; and

(2)      Application for leave to apply for judicial review be dismissed.

Observations for the Applicants:

THE APPLICATION

1.  The applicants are mother and son. I shall refer to the first applicant as the applicant, the second applicant as applicant son unless otherwise stated below.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 14 May 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.  The applicants did not attend the hearing on 8 July 2020. I shall proceed to assess the application on paper.

4.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended by deleting Immigration Department and replacing it with Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as proposed respondent, amending the date of the Board’s Decision from 30 August 2018 to 14 May 2018 and deleting Immigration Department, replacing it with the Director of Immigration (“the Director”) as interested party.

The applicants

5.  The applicant came to Hong Kong on 17 August 2010 as domestic helper. Her employment contract was prematurely terminated, but she overstayed and was arrested on 14 July 2012. She was charged with illegal overstaying, convicted and sentenced to one month’s imprisonment. She lodged a torture claim with the Director in March 2013 on the ground that if refouled, she would be harmed by a loan shark in Indonesia because of her husband’s unpaid loan. The Director rejected her application.

6.  On 18 June 2016 she gave birth to the applicant son. On 15 November 2016, she and her son lodged a non-refoulement claim with the Director. They raised the ground that, if refouled, they would be harmed by her husband and the loan-shark.

7.  The applicant claimed that in July 2010 she and her husband borrowed 40 million Rupiahs from a loan-shark in her name for the purpose of building their house. She then came to Hong Kong to work as a domestic helper. She remitted money to Indonesia for repayment. However, she learned that her husband had spent the money on drink and touring around in Indonesia. She had a relationship with a Nigerian man in Hong Kong and gave birth to the applicant son. The Nigerian man then disappeared before the birth of her son. Her husband saw her pregnant in the Facebook and he was very angry. The husband told her that he was being chased by the loan shark and his men and he was kicked by them as he was unable to pay the debt. The loan-shark had threatened to kill her.

The Director’s Decision

8.  The Director considered their application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); this applied to her son only and for the applicant, she had applied to the Director previously and was rejected on this ground;

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 17 August 2017 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. The Director found that the level of risk if they returned to Indonesia was low [14]; that reasonable state protection was available to them [18] and that internal relocation was an option open to them [19].

The Board’s Decision

10.  The applicants appealed to the Board against the Director’s Decision and attended a hearing on 19 March 2018.

11.  By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decision.

12.  The Board had taken the opportunity of asking questions from the applicant and found that the she was not a reliable witness and that her claims were not entirely credible and had been embellished and exaggerated and fabricated in part to create a claim for protection; that her claims about her husband’s debt and the threats that she and her son would face from a money-lender or loan-shark were all rejected; that the Board did not accept that there were substantial grounds to believe that the applicant son would face a risk of being subjected to harm, from, by or on behalf of the applicant’s husband and/or a moneylender or loan-shark to whom the applicant’s husband or anyone else owed money, that would amount to or constitute torture in Indonesia [73]. See the detailed reasons in paragraph 41-67 of the Board’s Decision.

13.  For the reasons set out in the Board’s Decision, the Board rejected all the risks as claimed by the applicants.

Application for leave to apply for judicial review

14.  The applicants filed Form 86 on 10 September 2018 for leave to apply for judicial review of the Board’s Decision. This application is late as the Board’s Decision is dated 14 May 2018.

15.  In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §§27 & 35 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.

16.  In the applicant’s affirmation in support of their joint application, she said that the Board disregarded her dangerous situation in Indonesia. She had not set out any ground to say that the Board erred in coming to its decision.

DISCUSSION

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 12 above.

18.  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.”

19.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

21.  Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

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