AKHMETZYANOVA IRINA v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1409/2021

[2021] HKCFI 3347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1409 of 2021

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 September 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

4.  The applicant applied for an adjournment for her to get a lawyer to represent her.  She said that she had no money but now she had got a friend to help her.  Her application was turned down because there was no evidence to show that she had a friend to assist her.  The Court had also considered the merits of her case.  It appeared quite clear that the Board had justifiable to turn down her late filing of her notice of appeal, which was late for over 5 years.  The reasons are set out below. The hearing proceeded.

The applicant

5.  The applicant is citizen of Russia. She came to Hong Kong on 17 September 2002, got married 2 days later and applied for a dependent visa on 20 September 2002.  Her application was approved on 14 November 2002. She was allowed to stay in Hong Kong on dependent status until 14 November 2003. She applied for extensions of her dependent visa from time to time until 1 February 2011 when it expired.  On 3 May 2011, she was convicted of an offence of trafficking in dangerous drugs and was sentenced to 7 years’ imprisonment. On appeal, the case was retried and she was convicted and sentenced to 4 years and 8 months’ imprisonment. A deportation order was issued. On 5 September 2013, she was released from prison. On 19 September 2013, she raised non-refoulement claim with the Immigration Department. The Secretary for Security agreed that the removal order would be suspended until her non-refoulement claim is determined.

6.  The applicant claimed that, if refouled, she would be harmed or killed by 2 mafia businessmen named Alexei and Vladislav because they had raped her in 2006 and they wanted her to work for them to seduce businessmen and drug them with rape drugs.  The events happened in 2006 when she returned to Russia to visit her mother and family. She was invited to attend a business conference by Vladislav, who was her former schoolmate.  She was taken to a cottage where Vladislav and Alexei raped her.  She managed to leave the cottage and returned home.  She left Russia for Hong Kong a few days later.  Since then, she had not returned to Russia.  But she heard from her sister in Russia that some strange, tough-looking guys had come to her father’s house and were asking about her.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

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

a.  risk of torture under Part VII C 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.  By Notice of Decision dated 17 February 2015 (“the Director’s Decision”) and Notice of Further Decision dated 5 December 2016 (the “Director’s Further Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed by Alexei and Vladislav was assessed to be low [16], the reasons being that they had not disturbed her after the rape incident in 2006 [18]; that there was no evidence that the state was involved in the incident [19] and therefore state protection would be available to her [20] and that internal relocation was an option open to her [22].  Her claim on BOR 2 risk was also refused in the Director’s Further Decision for the reason that she failed to establish, by evidence, that her personal right to life would be violated upon her return to Russia [6].

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s Decisions.  However, she was late in filing her Notices of Appeal. The Board found that the deadline for her to file her Notice of Appeal against the Director’s Decision was by 9 March 2015, and 21 December 2016 for the Director’s Further Decision. The Board received the applicant’s Notice of Appeal relating to the Director’s Decision on 21 July 2021.  On 26 July 2021, the Board also received the applicant’s ‘additional grounds’ dated 21 July 2021.  Therefore, the Board treated the filing of the Notice of Appeal relating to the Director’s Decision is on 21 July 2021 and the Director’s Further Decision on 26 July 2021, both of which are late.

10.  The Board refused to extend time for the applicant to file her Notices of Appeal in respect of the Director’s Decision and the Director’s Further Decision having considered the factors below:

(1)   the late filing period is more than 5 years;

(2)   the late filing reasons are vague and in places ambiguous and are not persuasive;

(3)   the merits of the applicant’s case by reference to the Director’s Decision and the Director’s Further Decision; and

(4)   the grounds of her appeal.

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

11.  The applicant filed Form 86 on 7 October 2021 for leave to apply for judicial review of the Board’s Decision.

12.  In her affidavit in support of her application, the applicant did not set out any specific grounds for her application.

DISCUSSION

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. The applicant appeared before the Court, other than asking for an adjournment, which had been turned down, she had nothing more to say.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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.  I am satisfied that the Board, in refusing to extend time for the applicant to file her Notices of Appeal with the Board, had duly consider the merits of the applicant’s case and other relevant circumstances in accordance with the directions of the Court of Appeal in Khan Kamal Ahmed [2019] HKCA 377, §§17 & 20.  The Board had good reason to turn down her application for late filing of the notice of appeal.

17.  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.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse grant leave to the applicant 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