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HCAL 2531/2018
[2019] HKCFI 2707
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2531 of 2018
BETWEEN
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Applicant |
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and |
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Torture Claims Appeal Board |
Putative 1st Respondent |
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Jane Curzon Lo qua adjudicator of the
Non-Refoulement Claims Petition Office |
Putative 2nd Respondent |
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and |
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Director of Immigration |
Putative 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 K.W. Lung:
Leave to apply for Judicial Review be granted.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 1 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant is legally aided and is represented by Mr. Francis Ngan, Counsel.
The applicant
3. The applicant is an Indonesian national. She came to Hong Kong to work as a domestic helper. She was permitted to stay as such until 2 September 2012. She overstayed. She took up employment without permission. She was arrested by the Immigration Department on 6 January 2014. On 8 January 2014, she was convicted and sentenced to 4 months’ imprisonment. She lodged her non-refoulement on 9 March 2014.
4. In support of her claim, she said that if refouled, she would be harmed or killed by her husband. In 2005, her husband borrowed money for his business. His business was not running well. He was unable to repay the loan. He was easily agitated and he abused her by assaulting her by kicking, beating and pushing her onto the floor. She felt helpless. He locked her up. However, he told her to go to Hong Kong and work there in order to earn money for him to repay the debt.
The Director’s Decision
5. The Director considered her 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”).
6. By Notice of Decision dated 22 December 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that the claimed risk of ill-treatment was not real and unforeseeable [33]; state protection was available [18] and internal relocation was possible and reasonable [19].
The Board’s Decisions
7. By Notice of Appeal dated 17 January 2018, the applicant appealed to the Board against the Director’s Decision. Based upon the date of the Director’s Decision, the Board considered that her Notice of Appeal was filed out of time. It considered that she had given no explanation for her delay and rejected her application for appeal without a hearing.
DISCUSSION
8. However, by letter dated 23 April 2019, the Department of Justice acting for the Director confirmed that the Director’s Notice of Decision was posted on 8 January 2018. The deadline for her to file her Notice of Appeal is therefore on 22 January 2018. The Department of Justice conceded that the Board’s decision of refusing her Appeal should be set aside and the matter be remitted to the Board for its fresh consideration.
9. I understand that the Department of Justice will not contest even for the judicial review. However, the hearing of judicial review must commence under rule 5 of the Order 53 of the Rules of the High Court. This is the stage where the application is for leave to apply for judicial review.
10. In the circumstances, leave for the judicial review must be given.
CONCLUSION
11. I grant her leave to apply for judicial review of the Board’s Decision. The applicant should follow rules 4 and 5 of the Rules of the High Court. To save time and costs, the parties should consider the judicial review by way of a consent order.
Dated the 1st day of November 2019
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(Mike Mak) |
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for Registrar, High Court |
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 Solicitors for the Applicant on 1/11/2019
KCL & Partners
Ref no.:
YFC11/12888/WCY |
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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 1/11/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st and 2nd Putative Respondent’s ref. no.:
USM 9950/18/1/223/I1009
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3718/17 (formerly RBCZ 11710/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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