NUR AZIZAH v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2532/2018

[2020] HKCFI 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2532 of 2018

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 decision of Torture Claims Appeal Board dated 13 February 2018 be refused; and

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

IT IS FURTHER DIRECTED that:

(1)      If the applicant intends 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, she 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 applicant 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 applicant applies for leave to apply for judicial review of the Decision dated 13 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant was absent on the hearing day of her application on 26 April 2019 and her application was dismissed for want of prosecution. She took out a summons returnable on 11 July 2019 for appeal against the said Order out of time. However, she was also absent on the hearing day and her summons was dismissed for want of prosecution. By another summons dated 21 August 2019, she applied to set aside the ex parte Order dismissing her summons and for extension of time for her appeal. She appeared for this summons.

3.  The applicant explained that she did not receive the court’s notice of hearing and she was ill on the second occasion.  In Re Abdus Salam [2019] HKCA 1091 at §22, the Court of Appeal held that her application should be considered on its merits. I therefore set aside the ex parte Order of dismissing her application. I shall now hear her application.

The applicant

4.  The applicant is a national of Indonesia. She came to Hong Kong on 5 January 2007 as a domestic helper. Her contract was terminated on 10 January 2008. She overstayed since 25 January 2008. On 19 September 2013, she was arrested by police. On 23 January 2014, she lodged a non-refoulement claim.

5.  In support of her claim, she said that if refouled, she would be harmed or killed by loan sharks Madam Lilis and her husband and by Adi Pamungkas because she refused to marry him. The relevant events leading her to leave her country are set out below.

a.     In 2003, her mother borrowed a loan from the loan sharks for her father’s medical expense. Her mother told her to repay the loan. Subsequently, her father passed away.

b.     In January 2004, Lilis and her husband went to her house and demanded payment. The husband had a knife with him. and he threatened that they would kill her and her mother if her mother did not pay the loan.

c.     The loan sharks frequently went to her home for repayment.

d.     In April 2004, she went to Taiwan and worked for two years. In June 2006 she returned. In September the same year, she came across the loan sharks and they threatened to kill her if she did not repay.

e.     She moved to live in her brother’s house. During her stay there, his brother introduced Adi to her. Adi was at that time 70 and he proposed to her, threatening that he would kill her if she refused. She did not agree, but he did nothing to her.

f.     Through an agency in Jakarta, she came to Hong Kong to work as a domestic helper in January 2007.

The Director’s Decisions

6.  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”).

7.  By Notice of Decision dated 29 May 2015 and Notice of Further Decision dated 24 November 2016, collectively called (“the Director’s Decisions”), the Director refused her claim for the reason that her claim was not substantiated.  There was no likelihood that the risk of harm from the loan sharks as they had no intention of killing her [21]; Aki also showed no intention of killing her [22]; state protection was available [29] and internal relocation was open to her [40]. BOR 2 risk did not apply to her case. See paragraph 6 of the Director’s Further Decision.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decisions and she attended a hearing before the Adjudicator on 2 December 2016.

9.  By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the same conclusions as the Director. See paragraph 32 to 37 and paragraphs 41 – 47 of the Board’s Decision.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 12 November 2018 for leave to apply for judicial review of the Board’s Decision.

12.  She relied upon the grounds below.

1.     There was no legal representation or advice for her appeal.

2.     The hearing bundle was given to her shortly before the appeal hearing without translation and she did not understand it.

3.     The Board relied upon not reliable, outdated or hearsay materials.

4.     The BOR 2 risk was assessed without screening.

5.     The Board did not make proper enquiry and understand her situation before dismissing her claim.

DISCUSSION

13.  The applicant’s application is late for about 6 months (deadline being 13 May and her application was on 12 November) She was unable to give any explanation for the delay. However, I have to consider if she has reasonable prospect of success in order to determine time extension should be granted to her for her application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015 §27(3).

14.  She said that she was free to state her case before the immigration officer and the Adjudicator at the Board hearing. Her duty lawyer had explained the Director’s Decision to her. Her friend had explained the hearing bundle and the Board’s Decision to her.

15.  I put the Board’s findings to her and asked if she had any comments on them. She said that she had no comments.

16.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage. Ground (1) fails.

17.  The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 held that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire. Ground (2) fails.

18.  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.”

19.  It is clear that Ground (2) is inconsistent with what she said in court; Ground (3) is her opinion without evidence or particulars in support of it; Ground (4) is not true and Ground (5) is only her personal opinion.

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

CONCLUSION

21.  Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for her to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

FURTHER DIRECTIONS

22.  It is further directed that:

a.     If the applicant intends 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, she 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 applicantmust 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