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

HCAL 148/2021

[2025] HKCFI 5410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 148 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 Applicant being absent in open court;

1.  The extension of time for the application for Judicial Review be refused.

2.  The application for leave to apply for Judicial Review be dismissed

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 22 November 2017 of the Torture Claims Appeal Board (“the Board’s Decision”).  Her application is late.  Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 22 February 2018. Her application was filed on 10 February 2021, which is late for more than 2 years and 11 months.  This issue will be dealt with below.

2.  The applicant did not request an oral hearing.

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

The applicant

4.  The applicant is a national of Indonesia.  She came to Hong Kong and worked as a domestic helper.  Her employment contract terminated and she stayed as a visitor.  However, she overstayed since 12 June 2015.  She lodged a non‑refoulement claim on the basis that, if refouled, she will be in danger because she may be harmed by her estranged husband, who had abused her with domestic violence in Indonesia.  Details of her story are set out in the Board’s Decision.  See hyperlink.

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2021/HCAL000148_2021_files/the_Board's_Decision.pdf

The Director’s Decision

5.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of Notice of Decision dated 22 June 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim because it was unsubstantiated.

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board.  On 30 October 2017, the Board conducted an oral hearing.  The applicant had given oral evidence and answered the Board’s questions.

8.  Having considered the applicant’s evidence, the Board made the findings below.

(1)  The Board accepted the applicant’s account with respect to her past events. The Board also accepted that she retained some subjective fear of being harmed by her husband, based upon her experience at his hands some 14 years ago.  [61]

(2)  However, the appellant admitted that her fear was speculative.  The Board found that she does not have substantial risk of serious or significant harm if she returns to Indonesia by her husband or anybody else.  [62]

(3)  Therefore, the Board considered that the applicant did not require any protection in respect of any of the applicable risks.  [63]

9.  For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

10.  The applicant has filed Form 86 dated 10 February 2021 for leave to apply for judicial review of the Board’s Decision.

11.  The applicant did not raise any specific ground in support of her application. Nor did she explain her late application.

DISCUSSION

12.  As mentioned in paragraph 1, 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 consider the merits of the applicant’s case.

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

14.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. 

17.  The applicant therefore fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

18.  I refuse to extend time for the applicant to apply for leave 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