|
HCAL 284/2024
[2024] HKCFI 1325
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 284 of 2024
|
BETWEEN
|
| |
Azizah Yumna Fariha |
Applicant |
|
and |
|
| |
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
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 To:
1. Extension of time to apply for leave for Judicial Review be refused; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 6 February 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 17 October 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 August 2023 (the “Notice”).
2. The leave application was filed 3 months and 20 days after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made 20 days out of time. Extension of time to file the leave application is required.
3. In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Merits is usually the determinant factor, particularly where the delay is short. The Applicant gave no explanation for the delay in her Form 86 or supporting affirmation. As the delay is not substantial, instead of incurring time to explore the reasons for the delay with the Applicant, for expedience the Court proceeded direct to assess the prospect of success in the proposed judicial review.
4. The Applicant is an Indonesian national. She had previously entered Hong Kong to work as a foreign domestic helper. She overstayed and was arrested on 17 February 2010. She made a claim for protection which was rejected on 3 September 2012 by the Director. She did not appeal that decision and was removed to Indonesia on 7 October 2013.
5. In 2015, she entered Hong Kong again to work as a foreign domestic helper using another travel document bearing a different name. She last entered Hong Kong on 29 December 2018. On 4 May 2022, she was arrested and convicted of immigration-related offences. On 31 May 2023, she raised a subsequent non-refoulement claim after her request to make a subsequent claim was allowed by the Director on 26 July 2023. In due course, her subsequent claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed by a moneylender known as Lila because of her inability to repay a loan borrowed from her and by her brother Amirudin in relation to personal family disputes arising from the loan upon her return to Indonesia.
7. The Applicant, now around 47 or 48 years of age, was born in Nusa Tenggara Barat, Indonesia. She received 12 years of education and has worked as a factory worker and as a foreign domestic helper in Hong Kong.
8. As mentioned above, the Applicant was removed to Indonesia in October 2013 and re-entered Hong Kong in 2015 under a different identity to work as a foreign domestic helper. Nothing eventful happened until January 2020 when she took out a loan from Lila in Indonesia for the purpose of opening a restaurant with her friend Sumiati. The loan was for the sum of 150 million Indonesian Rupiahs at a monthly interest rate of 10% with Amirudin providing the land certificate of the family home owned by her parents as collateral. Her restaurant closed down in June 2020. The Applicant was only able to keep up with payment of interest between January and October 2020.
9. Lila called the Applicant in around October 2020 to demand full repayment of the loan. She intimated that she would ask Amirudin to pay. Lila reported Amirudin to the police and caused him to be arrested. The Applicant tried to take out a loan in Hong Kong from Heizei Bank to pay Lila but was refused.
10. In November 2020, Amirudin called the Applicant and threatened to kill her unless she repaid the loan. In the same month, her neighbours informed the Applicant that Amirudin had been to her home in Indonesia and damaged the properties there. Her younger brother also warned her against coming back because Amirudin was very angry and had told the family that he would kill her for bringing disgrace upon the family.
11. The Applicant claimed it would not be safe to return to Indonesia because of the threats from Amirudin and Lila. She said Lila had triad connections and Amirudin had a bad temper and a history of violence towards her. Amirudin also had friends who were police officers. She did not believe the Indonesian police would protect her as they were corrupt. She also feared she would be arrested by the police due to the outstanding loan, just like her brother had been. She did not believe internal relocation would be feasible because Lila was well-connected with the triads and she could easily locate her.
The finding of the Board
12. The Board accepted the Applicant’s evidence about the core events in her claim, namely the loan from Lila and the attempt by Lila to collect the debt from Amirudin. However, it did not accept that she faced any real risk of harm from either Amirudin or Lila.
13. Though Amirudin had a history of violence towards the Applicant, he never caused her serious harm in the past. Hence, the Board found the level of future harm from Amirudin was unlikely to attain the requisite threshold to entitle her to protection. As the Applicant had lost contact with Amirudin for over three years, the Board found it was speculation on her part that Amirudin intended to carry out the threats against her upon her return.
14. As for the perceived threats from Lila, the Board noted that Lila had vowed to collect the debt from Amirudin and had taken actions against him in Indonesia. The loan was secured by the land owned by her parents and there was no reason for Lila to take the trouble to pursue the Applicant or harm her.
15. The Board also noted that the Applicant had lived in Lombok in the past without issue and it would be possible for her to relocate to other parts of Indonesia such as Jakarta or Surabaya to avoid Lila or Amirudin. As an able-bodied adult with over 20 years of working experience, it would not be unduly harsh to expect her to relocate.
16. After careful consideration of authoritative and credible country of origin information, the Board considered there was no objective reason why the Indonesian government or police would be unwilling or unable to provide protection to the Applicant. As for her claim that the Indonesian police was corrupt, the Board noted that there were channels to complain against police corruption and ineffectiveness, should the need arise. The Board found it was the Applicant’s own decision not to seek help from the police and that adequate state protection would be available to her on her return to Indonesia.
17. For the above reasons, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
18. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].
Grounds for judicial review
19. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she enclosed a statement repeating the gist of her claim and reiterated her dangerous situation. She had been invited by the Court via its letter dated 27 February 2024 to advise the Court of her first language and to file submissions. She responded but did not file any submissions. At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about errors of law, procedural unfairness and irrationality in the Decision.
20. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
Discussion
21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicants’ claim on the basis of the case as she asserted. It accepted her evidence about the core events of her claim. The Applicant could not have any reason to complain about the Board’s finding of those primary facts. It was on the basis of those facts that the Board assessed that the Applicant would not be at risk of harm from either Lila or Amirudin. Further, on the basis of authoritative and credible country of origin information, the Board was also satisfied that adequate state protection and internal relocation are available to mitigate or avoid the risk if it turns out to be real. Hence, the Board found the Applicants had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
22. For the above reasons, leave to file the leave application out of time is refused and the Applicant’s application for leave to apply for judicial review is also refused.
Dated 14th day of May 2024.
| |
( Allen LEE )
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 his solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 14/5/2024
Azizah Yumna Fariha
Applicant’s ref. no:
Nil. |
|
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 15/4/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 22077
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 665/23 (Formerly RBCZ 5000635/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] CACV 63/2015 (unreported) 3 November 2015
[2] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at [14(1)]
|