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

HCAL 2383/2023

[2024] HKCFI 1071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2383 of 2023

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; and

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 1 August 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). She did not ask for a hearing. I shall deal with her application on paper. Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which is 1 November 2023. Her application was filed on 29 December 2023, which is nearly 2 months late. This issue will be dealt with below.

The applicant

2.  The applicant, aged 38, is an Indonesian. She was given an employment visa to work as a foreign domestic helper in Hong Kong on 18 July 2019. Her contract was prematurely terminated on 24 May 2020 and she overstayed in Hong Kong since 8 June 2020. She was arrested by the police on 8 December 2020. The applicant raised a non-refoulement claim on 12 December 2020. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because of the disputes over the loan borrowed by him.

3.  According to the applicant, while she was working in Hong Kong, she would remit HK$3,000 to her husband every month for his living expenses. After the applicant’s employment contract was terminated on 24 May 2020, she could no longer continue the remittance. Her husband then started calling her every week in around mid-2020, telling her that he had borrowed a large sum of money from loan sharks and he wanted her to repay the loan. He also verbally threatened her over the phone that he would kill her if she went back to Indonesia without repaying his loan. The applicant believed that her husband borrowed the money for drinking and gambling.

4.  During a video-call in around June 2020, the applicant was told by her son that her husband had physically assaulted him while he was mad and heavily drunk. Her son sustained bruises to his forehead as a result, but he did not attend hospital for treatment, nor did he report the assault to the police. The applicant’s mother also told her that her husband was furious and constantly asking for money.

5.  The applicant changed her telephone number in around July 2020 and she no longer had contact with her husband since then. She also did not maintain contact with her mother and son because she did not want them to know about her unemployment in Hong Kong and did not want her husband to trouble them regarding her whereabouts.

6.  The applicant was of the view that the police could not offer protection to her because this was a personal problem and she did not have any evidence against her husband. She also said that the Indonesian police were seriously corrupt. The applicant considered internal relocation not viable as well because she did not have any relative elsewhere, nor did she have the financial means for relocation.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 2 December 2021 (“the Director’s 1^st Decision”).

The Director’s 1^st Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from her husband indicated that that she did not face an imminent and substantial risk [12]-[13]; (ii) state protection will be available to her upon her return [15]-[20]; (iii) internal relocation is viable [14], [21]-[22] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [23]-[28], Persecution risk [29]-[33] or Torture risk [34]-[37].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 9 January 2023, the Board conducted an oral hearing.

11.  The Board had significant concerns about the credibility of the applicant’s claims [74]. They noted that she made assertions of facts without basis, such as the reason for her husband’s assault on her son [75]. The applicant’s evidence was also inconsistent in numerous respects, particularly in relation to what caused her husband to get angry, whether her husband had assaulted her in the past and when she last contacted her family [76]-[79]. Furthermore, the Board found the applicant’s claims in many aspects made little or no sense, including her decision to cut off all contact with her family, her claim that her husband would kill her simply because she failed to pay his debt and her failure to obtain her mother’s contact details from her brother. Finally, the Board observed that the applicant’s claim for not returning to Indonesia when her visa expired was problematic because her employment contract was terminated in May 2020, while her claimed threat from her husband only started in June 2020 [80]-[83].

12.  Based on such findings, the Board only accepted that the applicant’s husband might have assaulted her son when drunk, but did not accept that he was indebted and the claimed threat/violence resulted from his loan problem. The Board also did not accept the claim that the applicant had lost contact with her family [87]-[91]. They were not satisfied that the applicant faced any appreciable risk of serious or significant harm and concluded that her case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [11]-[20], [92]-[96]. The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed.

The Director’s 2^nd Decision

13.  On 1, 5 and 14 September 2023, the applicant made a subsequent non-refoulement claim to the Director. On 30 November 2023, the Director rejected the applicant’s claim because there had not been a significant change of circumstances since her previous claim was finally determined; and the change, if any, would not result in a realistic prospect of success for her claim.

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

14.  The applicant has filed Form 86 dated 29 December 2023 for leave to apply for judicial review of the Board’s Decision.

15.  The applicant attached a copy of the Director’s Notice of Decision dated 30 November 2023 to her affirmation in support of her application without specifying any reason to challenge the Board’s Decision.

DISCUSSION

16.  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.

17.  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).

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

19.  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.”

20.  The Board had considered her evidence and found that her evidence in relation to the debts was not credible. As a result, the Board did not believe that she came to Hong Kong because of her husband’s indebtedness. However, the Board went further and found that state protection and internal relocation were available to the applicant. The applicant is therefore not subjected to any real risk of harm as she alleged if she returns to Indonesia.

21.  The applicant has failed to raise any valid ground to challenge the Board’s Decision. In my view, the Board’s Decision is reasonable and the Court has no reason to interfere with it.

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

23.  That the applicant had made a subsequent claim application and the Director rejected her application is not relevant to this application. I shall not deal with it here.

CONCLUSION

24.  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