FAJAR-KOMARIYAH-BT-WAAN-KAFI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1114/2024

[2024] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1114 OF 2024

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 16 August 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 expires on 16 November 2023. Her application was filed on 12 July 2024, which is late for more than 6 months. 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.

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, aged 45. She came to Hong Kong to work as a domestic helper on 24 July 2019. He employment contract was terminated on 7 August 2022 and she had to depart on or before 12 October 2022. She failed to do so and was arrested by police. On 20 November 2022, she lodged her non-refoulement claim by written signification. Her claim is on the basis that, if refouled, she will be harmed or killed by her husband because she failed to remit money to him.

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that if she returns to Indonesia: (i) the chance of her being harmed or killed is remote; (ii) state protection will be available her [16]-[20]; and (iii) internal relocation is viable [23]-[24].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 7 July 2023, the Board conducted an oral hearing. However, the applicant was absent on the date of hearing. The Board considered her appeal in accordance with section 15 (1), (2) & (4) of Schedule 1A of the Ordinance[2].

8.  Having considered the applicant’s evidence, the Board found that (i) the grudge between her and her husband is a personal grudge, not within the context of the Convention [90]; state protection will be available to her if she returns to Indonesia [92]; and (iii) the applicant cannot be classified as a refugee under the Convention [93].

9.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

10.  The applicant has filed Form 86 dated 10 July 2024 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

12.  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.

13.  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).

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

15.  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.”

16.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

17.  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

18.  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.