YASIN IMRAH BT NURDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1230/2018

[2021] HKCFI 589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1230 of 2018

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;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  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.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 26 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). This application is late as Form 86 was filed on 29 June 2018. I shall deal with this issue below.

3.  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.

The applicant

4.  The applicant is an Indonesian national. On 9 January 2013, she came to Hong Kong as a domestic helper. Her employment contract was terminated prematurely and she applied to stay as a visitor. Her application was allowed. But she overstayed. On 19 September 2013, she surrendered to the Immigration Department and by a written representation dated 12 May 2014, she lodged her non-refoulement claim.

5.  The applicant claimed that, if refouled, she would be harmed or killed by her father because she wanted to convert from Muslim to Christianity. Her father is a Muslim fanatic, who would punish her severely if she did not comply with the Muslim rituals. When she worked as a domestic helper in Hong Kong in 2013, she was in touch with Christianity, which she liked very much. She determined to convert to Christianity. When she told her father about this, her father was furious and threatened to kill her if she ever returned to Indonesia. Some villagers of her village proposed to her father to burn her alive. Details of the incidents are set out in paragraph 18 of the Board’s Decision.

The Director’s Decisions

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 3 June 2016 (“the Director’s Decision”), the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk for the reason that the level of risk of harm from her father and the villagers upon her return to Indonesia was assessed to be low. [13]; that state protection was available to her [15] and that internal relocation was an option open to her [21].  By Notice of Further Decision dated 14 September 2017 (“the Director’s Further Decision”), the Director reject her claim on BOR 2 risk for the reason that she failed to establish a personal and real risk within the context of the Convention if she returned to Indonesia. [6]

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision and attended the hearings on 25 October 2017 and on 7 November 2017.

9.  The Board rejected her appeal and confirmed the Director’s Decision and Further Decision.

10.  The Board considered the applicant’s evidence and found that:

(1)  there was no risk of torture upon her return to Indonesia and therefore there was no merit in her application [26];

(2)  there was evidence to support that state protection would be available to her upon her return to Indonesia [31];

(3)  internal relocation was an option open to her [41-49];

(4)  based upon the reasons above, her claim on the Torture risk, BOR 2 risk, BOR 3 risk and Persecution risk were rejected.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 29 June 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that she was applying for judicial review of her case without stating on what grounds.

DISCUSSION

12.  As mentioned in paragraph 2 above, her application is late. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“… … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.” [39]

I shall therefore consider the merit of the applicant’s case.

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. In a nutshell, the Board rejected her evidence on the facts in support of her claim.

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 has not set out any specific grounds 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 her application 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