YULI-BT-UCA-ITA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 599/2024

[2024] HKCFI 1712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 599 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;

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 29 June 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 29 September 2023. Her application was filed on 15 April 2024, which is more than 6 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.

The applicant

3.  The applicant, aged 37, is an Indonesian. She last arrived in Hong Kong on 4 November 2019 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 26 November 2021 and she overstayed since 11 December 2021. The applicant was arrested by the police on 17 August 2022 and she made a non-refoulement claim on 31 August 2022 and 20 September 2022. The claim was made on the basis that, if refouled, she would be harmed or killed by her husband.

4.  According to the applicant, she married her husband in around 2010/2011. After the applicant gave birth to their son in 2015, her husband often assaulted her whenever they argued. The applicant sometimes moved back to her maiden home, but her husband would always come to apologise and ask her to return home with him.

5.  One day in early January 2022, the applicant was informed by her mother that two staff members from a bank came to demand loan repayment from the applicant’s husband. The applicant then confronted her husband and told him that she would not repay the loan for him because she had lost her job in Hong Kong. The applicant’s husband got angry and threatened to kill the applicant if she returned to Indonesia. He also blocked her telephone number.

6.  In around September 2022, the applicant asked her mother to arrange for a divorce with her husband because she leant from a friend that her husband had re-married. When the applicant’s husband became aware of the applicant’s intention for a divorce, he threatened her mother not to involve in their marriage, otherwise he would kill her and the applicant. The applicant’s mother did not hire a lawyer to handle the divorce for the applicant because she was too scared. She also did not report the matter to the police because she was illiterate and did not know how to do so. Around two months later, the applicant received an anonymous message via Facebook Messenger, requesting her to repay the loan for her husband.

7.  The applicant had no update about her husband when she last contacted her family in November 2022. The applicant was of the view that she could not seek protection from the police because they were corrupt and she had no money to bribe them. She also considered internal relocation not viable because she had no relatives elsewhere and lacked the financial resources for relocation.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 17 January 2023 (“the Director’s Decision”).

The Director’s Decision

9.  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”);

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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity of past ill-treatment from the applicant’s husband indicated that he had no real intention to seriously harm or kill the applicant [12] - [13]. In any event, the applicant’s behaviour of not taking the first opportunity to seek immediate assistance was inconsistent with that of someone genuinely in fear [14].

11.  Furthermore, (i) state protection would be available to her [16] - [20]; (ii) internal relocation would be viable [15], [21] - [25] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26] - [31], Persecution risk [32] - [37] or Torture risk [38] - [41].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 25 May 2023, the Board conducted an oral hearing.

13.  Regarding the loan, although the Board accepted that the applicant’s husband had an unpaid loan to a bank and that staff members from the bank had come to the applicant’s maiden home to look for her husband, the Board considered that the applicant would not be liable if she was not a party to the loan [30] - [32]. As to the applicant’s proposed divorce to her husband, the applicant conceded at the hearing that she had known about her husband’s affairs with another woman for many years [35].

14.  The Board accepted that the applicant was assaulted by her husband in the past when they argued but found they had no direct contact with each other since January 2022 [37]. It also accepted that the applicant’s husband had threatened her because she refused to help him repay the loan and because she wanted to divorce him [38]. However, the Board was of the view that the threats made by the applicant’s husband were merely empty words without genuine intent to be carried out [40]. In any event, internal relocation would also be available to the applicant [43] - [45].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [12] - [23], [48] - [56]. 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

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

17.  In the affirmation in support of her application, the applicant did not raise any specific ground. Nor did she explain why she has delayed her application.

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 had carefully considered the applicant’s evidence. It comes to the conclusion that she will not be subjected to any real risk of being harmed by her husband if she returns to Indonesia and internal relocation is also a viable option for her.

23.  The applicant has raised no valid reason to challenge the Board’s Decision.

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

CONCLUSION

25.  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.

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