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

HCAL 1861/2018

[2020] HKCFI 1875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1861 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 14 February 2017 be refused; and

2.      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 14 February 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), which dealt with her claim in relation to Torture risk, BOR 3 risk and Persecution risk. See §7 below. By another Decision dated 29 June 2018, the Board dealt with her claim in relation to BOR 2 risk and rejected her appeal. The applicant had not applied for leave to apply for judicial review of this Decision.

2.  The applicant was absent at the scheduled hearing on 9 July 2020. The Court decides to deal with the applicant’s application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Security Bureau and replacing it with the Board as the proposed respondent and by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.  The applicant is an Indonesian national. She came to Hong Kong on 29 August 2005 as a domestic helper. Her employment contract was terminated on 1 October 2007 and she was allowed to remain in Hong Kong as a visitor until 15 October 2007. She overstayed. She surrendered to the Immigration Department on 27 September 2010. She was convicted of the charge of breach of condition of stay in Hong Kong and was sentenced to 2 months’ imprisonment. Her husband is a construction worker with a Hong Kong Identity Card. She applied for a dependent visa to join her husband in June 2011 and her application was refused on 6 January 2014. She lodged her non-refoulement claim on 23 May 2014.

5.  In support of her claim, she said that if refouled, she would be harmed or killed by her father because of her marriage in 2010 in Hong Kong to a Nepal-born Hindu, Mr. RAI Puspa (“Puspa”).

6.  The applicant claimed that she married her husband in Hong Kong in December 2010. She was aware that her father, who is a Muslim, would oppose it. However, in 2012, she told her father about the marriage. Her father was furious and said that he would come to Hong Kong to drag her back to Indonesia. Her father was a furious and violent man. He had abused her mother with violence at home, causing her to suffer from mental disorder. Her father also had a record of murdering someone in Kendal and he had served his sentence. She had experienced her father’s violence as he had come to the agency to remove her forcefully in order to stop her from getting employment away from home.

The Director’s Decisions

7.  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”).

8.  By Notice of Decision dated 27 April 2015 (“the Director’s Decision”), the Director refused her claim in relation to Torture risk, BOR 3 risk and Prosecution risk for the reason that her claim was not substantiated.  The Director found that the level of risks, if she returned to Indonesia, was low [12]; state protection was available to her [15]; internal relocation was an option open to her [16].

9.  By Notice of Further Decision dated 13 April 2017 (“the Director’s Further Decision”), the Director found that the applicant failed to establish her claim under BOR 2 risk.

The Board’s Decision

10.  The applicant appealed to the Board against the Director’s Decision and attended the hearing on 1 August 2016.

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

12.  The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that her case did not fall within Persecution risk under the Convention [(A)(8)]; that there was no substantial ground to support her claim under BOR 3 risk [(B)(c)] and that her experiences did not amount to torture as defined by section 37U of the Ordinance [(C)(a)]. Also, relocation was an option open to her [46].

Application for leave to apply for judicial review

13.  The applicant filed Form 86 on 6 September 2018 for leave to apply for judicial review of the Board’s Decision.

14.  In her affirmation in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision. She said that she would produce her marriage certificate. But the fact that she had married to her husband in Hong Kong is not in dispute.

DISCUSSION

15.  Her application is late as the Board’s Decision is dated 14 February 2017 and she filed Form 86 on 6 September 2018. Under Order 53, rule 4(1) of the Rules of the High Court, the application has to be made promptly and in any event within 3 months from the date when the grounds of the application first arose unless the Court extends the time for her to make the application. This Court has to consider the merits of her application in order to determine whether time should be extended. AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

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

17.  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.”

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

20.  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.

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