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HCAL 1565/2022
[2024] HKCFI 884
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1565 of 2022
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BETWEEN
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Salamah |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
1. Extension of time to apply for leave for Judicial Review be refused; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 23 December 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 29 July 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 December 2021 (the “Notice”).
2. The leave application was filed more than four months and three weeks after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than one month and three weeks out of time. Leave to file the leave application out of time is required.
3. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors, particularly merits, are most crucial and determinative. If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.
4. The Applicant gave no explanation for the delay in her Form 86. At the hearing, the Court explored the reasons of the delay with her. She admitted the delay was caused by her neglect in informing the Board of her change of address. She has no reasonable explanation for the delay. But as the delay is not very substantial, the Court will consider merits of her intended judicial review, instead of outright refusing her leave for lack of reasonable explanation for the delay.
5. The Applicant is an Indonesian national. She last entered Hong Kong on 18 August 2019 to work as a foreign domestic helper. Her contract of employment was prematurely terminated but she did not leave Hong Kong within the prescribed period. She overstayed and was arrested on 1 September 2021. On 11 October 2021, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed by her ex-husband (“Suwito”) upon her return for refusing to help him pay his debt.
7. The Applicant, now aged 37, was born in East Java, Indonesia. She received nine years of education and has fourteen years of working experience as a foreign domestic helper in Malaysia, Singapore and Hong Kong.
8. She married Suwito in 2009 and gave birth to their son in 2013. She came to Hong Kong to work in 2014. On the other hand, Suwito developed gambling and drinking habits. He squandered the money the Applicant remitted to him and did not take care of their son.
9. The Applicant returned to Indonesia for holiday in August 2019 when she met a debt collector in her home. She then confronted Suwito about the money he owed. Suwito told her that he owed a lot of money and that the Applicant had to help him pay back the loans. When she refused, Suwito slapped her face twice and threatened to kill her if she did not help.
10. The Applicant suffered redness on her face and a cut on her lips. It took her a week to recover. She went back to her parents’ home in the same village with her son. She made a police report on the same day. She paid the officer one million Indonesian rupees because she thought she had to bribe the police to secure their assistance. The officer took a statement from her and on the next day the officer visited Suwito at his home and gave him a warning.
11. Suwito went to her parents’ home one day under the pretext of seeing their son. Again, he asked the Applicant to help with the debt. When she refused, he again threatened to kill her.
12. The Applicant returned to Hong Kong on 18 August 2019 and decided to divorce Suwito. She called him to inform him of her decision. Thereafter, Suwito made death threats to her every day via Whatsapp. The divorce was formalised in January 2020. Between January and November 2020, the Applicant received four or five messages every day from Suwito about his demand and death threat. Thus, she blocked his telephone number in November 2020.
13. The Applicant is afraid of returning to Indonesia because she believes Suwito will harm her. She confirmed that he had not harmed her mother or son in Indonesia. She does not believe the Indonesian police would help her, as the police required bribes before taking any action. She also does not believe internal relocation is feasible because she has no one to support her in other cities and she did not feel safe living alone in other parts of Indonesia.
The finding of the Board
14. The Board accepted her evidence and that she had been threatened by Suwito in the manner she described. However, it did not think she was in need of protection because Suwito was unlikely to have any motive to harm her. She had ceased all contacts with him for a long time. It was only her speculation that Suwito would still be interested in harming her. Further, Suwito had only attacked her once and the injury inflicted on her was not serious. This showed that any risk of harm she might face from Suwito on her return would not attain the minimum threshold of severity.
15. The Board also found adequate state protection would be available. She had successfully filed a complaint against Suwito and the police followed up on her complaint, albeit after receiving a bribe. On the basis of authoritative and credible country of origin information (“COI”), the Board found that the Indonesian government had taken steps to improve police professionalism and monitor police conduct. In addition, there are channels for citizens to complain against police misconduct, such as the Corruption Eradication Commission. The Applicant can also seek assistance from other non-governmental organisations such as the National Commission on Violence against Women (Komnas Perempuan).
16. On the basis of the above findings of fact, the Board found there was nothing to suggest that the Applicant would face any of the proscribed risks of harm from Suwito under BOR 2 and BOR 3 Risks grounds.
17. On Torture Risk ground, the Board found that Suwito was not a state actor and there was nothing to suggest that his actions were acts instigated, acquiesced, sponsored or condoned by the state.
18. In relation to Persecution Risk ground, the Board found that the Applicant’s dispute with Suwito was purely private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
19. Furthermore, the Board considered it reasonable for the Applicant to relocate herself to other parts of Indonesia, such as Jakarta or Surabaya to avoid the possible risk of harm and that with her age and work experience it would not be unduly harsh to expect her to do so.
20. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
21. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].
Grounds for judicial review
22. The Applicant did not advance any grounds for judicial review in her Form 86 or her supporting affirmation. After the above legal principle had been explained to her, she confirmed she had no complaint about procedural unfairness or irrationality in the Decision and left it to the Court to look for errors of law in the Decision. The Court did not accept her confirmation at its face value. In the absence of specific grounds of application, the Court in an application for judicial review will focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Discussion
23. The Board assessed the Applicant’s claim on the basis of the case as she asserted. Understandably, the Applicant is seeking to challenge the Board’s finding of fact and of law that she would not face any real harm or risk of harm if returned to Indonesia. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
24. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.
25. The Board assessed the Applicant’s claim on the basis of the case as she asserted. It was on those evidence, it further found she is not entitled to non-refoulement protection under any of the four applicable grounds. These are mixed finding of facts and of the law. Insofar as they are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as they are finding of the law, they are absolutely correct. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Furthermore, on the basis of authoritative and credible country of origin information, the Board is satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turns out to be real. These are also finding of fact which the Court on a judicial review will not interfere. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
26. The Applicant has no reasonable explanation for a delay of more than one month and three weeks. In any event, her proposed judicial review has no realistic prospect of success. For these reasons, leave to file the leave application out of time is refused and her application for leave to apply for judicial review is also refused.
Dated 22nd day of March 2024.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 22/3/2024
Salamah
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 22/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19755/22/1/156/I2521
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2119/21 (Formerly RBCZ 5000291/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[5] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at [14(1)]
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