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

HCAL 535/2019

[2020] HKCFI 763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 535 of 2019

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 decisions of Torture Claims Appeal Board respectively dated 20 February 2017 and 20 October 2017 be refused; and

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

IT IS FURTHER DIRECTED that:

(1)  If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)  When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3)  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)  Liberty to apply.

Observations for the Applicant:

THE APPLICATION

1.  The applicants apply for leave to apply for judicial review of the Decisions respectively dated 20 February 2017 and 20 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

2.  The applicants are not legally represented and they did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicants to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the first applicant, who is the mother of the second applicant appeared on 30 October 2019 on behalf of herself and her son. As the evidence of the first applicant will cover the second applicant, I shall, unless otherwise stated, set out her evidence, which will cover both applicants.

3.  Leave was given to the applicants to amend Form 86 by replacing the applicant with the Director as interested party

The applicants

4.  The applicant is an Indonesian national. She came to Hong Kong on 4 January 2010 and was permitted to stay as a domestic helper. Her employment contract was terminated prematurely. She overstayed since 7 November 2011. She surrendered to the police on 15 December 2011. She was charged and convicted of the charge of overstaying without authority and was sentenced to two weeks’ imprisonment suspended for three years. On 13 January 2013, she gave birth to Master Aamir, the second applicant. She lodged a torture claim for herself and was rejected by the Director in the first instance and by the Board on appeal. She made a non-refoulement claim for herself and on behalf of her son on 14 June 2013 and 24 May 2013 respectively.

5.  She claimed that if refouled, she feared that she would be harmed or killed by the loan shark, Tuheri and her parents due to her relationship with her boyfriend in respect of different religious as well as having her son born of out wedlock. She would also be harmed by her previous fiancé namely, Mahtori. Her son, the second applicant would be discriminated or ostracized in Indonesia. He might be stoned or beaten by their peers and he might be subject to kidnapping in Indonesia.

6.  Her family was indebted to the loan shark for 50 million rupiahs and was unable to repay. The loan shark slapped her father’s face and threaten to kill her family and take over their house. She worked in Hong Kong and met a boyfriend with whom she born a son. She was a Muslim and her boyfriend was a Christian. Her parents disapproved of their relationship. Her parents told her that if she returned to Indonesia, they would kill her. Mahtori, her previous fiancé demanded money from her family. He took away raw rice and furniture from her family.

The Director’s Decisions

7.  The Director considered her son’s application in relation to the following risks:

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

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”).

8.  As to herself, since she had applied for protection under 7(a). and failed, the Director consider her application in relation to the rest other than 7(a). Their applications were considered jointly as the facts of the mother’s application covered the son’s.

9.  By Notice of Decision dated 31 July 2015 and Notice of Further Decision dated 15 March 2017, collectively called (“the Director’s Decisions”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that the level of risk of harm against them upon their return to Indonesia was low [27]; that there was no evidence that the loan shark targeted the mother [33]; that state protection was available to them [51] and internal relocation was an option open to them [63].

The Board’s Decisions

10.  The applicants appealed to the Board against the Director’s Decisions and she attended a hearing before the Adjudicator on 17 June 2016.

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

12.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion:

“22. I do not accept that the alleged potential assailants are interested to locate A1 and A2 even if they (the alleged assailants) should have huge resources and manpower, as well as are willing to expand same to search for needle in a haystack. I find no substantial risk or any substantial basis of fear. There are numerous places in Indonesia, at least other than A1’s home locality, where she and A2 can safely live without undue hardship, which is another reason for today’s appeal to fail, independent of what was stated earlier.”

13.  The Board also took into consideration that the first applicant had taken 3 years and 5 months to make the protection claim and it asked for explanation. After considering her explanations, it took the view that she was dishonest and unreliable and found that she and her son were not genuine claimants. See paragraphs 34 to 37 of the Board’s Decision.

Application for leave to apply for judicial review

14.  The applicant filed Form 86 dated 25 February 2019 for leave to apply for judicial review of the Board’s Decisions.

15.  In her affidavit in support of her application, she did not set out any grounds in support of her application.

DISCUSSION

16.  I note that the applicants’ application is out of time; the latest Board’s Decision being dated 20 October 2017 and her application being 25 February 2019, there being a delay of more than one year. I asked the applicant for her explanation for such a delay. She explained that she did not receive the Board’s letter on time and she did not know her right of judicial review.

17.  The applicants’ application cannot proceed without extension of time for them to file their application out of time. See Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28.

18.  I am not satisfied with her explanation. I further consider that she has no merits in her application. See Nupur Mst v Director of Immigration [2018] HKCA 524 §14.

19.  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.”

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

CONCLUSION

21.  Since the applicants’ application for judicial review of the Board’s Decisions has no reasonable prospect of success, I refuse to grant them extension of time to apply for leave to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their application. See Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §21.

FURTHER DIRECTIONS

22.  It is further directed that:

a.  If the applicantsintendto appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

b.  When filing the application for leave to appeal, the applicantsmust at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

c.  The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

d.  If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

e.  Liberty to apply.

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