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HCAL 465 of 2021
[2021] HKCFI 1157
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 465 OF 2021
BETWEEN
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Himatun Nafiah |
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 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 refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 24 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 1 April 2021 is late. I shall deal with this issue 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”), the Court will deal with her application on paper.
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.
The applicant
4. The applicant is an Indonesian national. She came to Hong Kong on 16 March 2010 as a domestic helper. Her employment contract was terminated prematurely and she overstayed despite extension of time being granted. She was arrested by police on 26 September 2010. She had committed the offences of breach of condition of stay and possession of an identity card relating to another person, for which she was sentenced and discharged. On 22 February 2014, she lodged her non-refoulement claim with the Immigration Department.
5. The applicant claimed that, if refouled, she would be harmed or killed by her mother. Her mother had borrowed a loan from a loan shark for the medical expenses of her deceased father. She was unable to repay the loan. She asked the applicant, who was working in Hong Kong as a domestic helper to marry the loan shark for repayment of the loan. The applicant refused and her mother was angry. In Hong Kong, she had followed her friends to go to church. She finally converted from Muslim to Christianity. Her mother asked her to return to Indonesia to marry the loan shark and she refused again. She told her mother that she had converted to Christianity. Her mother was furious and threatened that she had to return to marry the loan shark and convert back to Muslim or she would kill her if she returned to Indonesia. Details of the incidents are set out in paragraph 8 of the Director’s Decision described below.
The Director’s Decision
6. 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”).
7. By Notice of Decision dated 11 January 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there were no substantial grounds in believing that she would face the risk of harm from her mother [husband] [14]; that state protection would be available to her [18]; that the state was not involved in the incidents [19] and that internal relocation was an option open to her [21]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 28 February 2018.
9. The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. In paragraph 28 of the Board’s Decision, the Board recorded:
“Toward the end of the hearing, the Board raised that the applicant’s evidence indicated that she had fabricated all of her claims, in relation to both her mother and Christian conversion, in order to apply for protection, and prolong her stay in Hong Kong. The Board invited the applicant to comment, however she declined.”
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 1 April 2021 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant simply said that she applied for leave to apply for judicial review against the Director and did not set out any specific grounds for her application.
DISCUSSION
12. As mentioned in paragraph 1 above, 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 first consider the prospect of the intended appeal.
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. The applicant referred to the Director. Her application should be for leave to apply for judicial review of the Board’s Decision as the Director’s Decision is not susceptible to judicial review once an appeal to the Board is pursued by the applicant. See Re: Moshsin Ali, [2018] HKCA 549 at §45. The applicant has not set out any error of the Board in the assessment of her case in support of her application.
16. The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to extend time for the applicant to make her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 3rd day of May 2021
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(M. O. WONG)(Ms)
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 Applicant
on 3 May 2021
Himatun Nafiah
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 3 May 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5947/17/1/231/I596
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2120/16 (Formerly RBCZ/3000977/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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