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

HCAL 2332/2018

[2022] HKCFI 2662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2332 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.  The applicant applies for leave to apply for judicial review of the decision dated 12 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is dealt with on paper.

3.  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.

The applicant

4.  The applicant is a national of Indonesia.  She entered Hong Kong on 11 January 2013 as a foreign domestic helper.  When her employment contract was prematurely terminated, she was permitted to remain as a visitor until 26 March 2013.  She did not depart and had overstayed since 27 March 2013.  On 16 April 2013, she was arrested by the police for overstaying.  On 5 November 2013, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband as she failed to repay his debts.

5.  In short, the applicant claimed that her husband had been abusive toward her since 2003 when she returned home from her employment in Malaysia.  The applicant believed that the origin of the domestic violence was her inability to provide financial support to the family after the end of her employment. From 2003 onwards, the applicant was assaulted by her husband.  In 2010, she decided to work in Hong Kong.  In around 2012, her husband demanded her to repay his debts.  Nevertheless, after her employment contract was terminated prematurely, she was unable to afford the loan.  As a result, her husband started to harass her and threaten her via phone.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 May 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)  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

(4)  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 way of the Director’s First Decision, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk.  The reasons for dismissal were that (i) the alleged ill-treatments by her husband did not attain a minimum level of severity [12]; (ii) her husband had no real intention to harm or even kill her [13]; (iii) her perceived risk of harm was unlikely to materialize [14]; and (iv) state protection would be available to her [15].

8.  For reasons set out in the Notice of Further Decision dated 6 April 2017 that there was no evidence to show that her right to life would be violated upon her return, the Director also rejected the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant first appealed the Director’s First Decision to the Board.  The Board scheduled an oral hearing for her appeal to be at 14:30 on 25 August 2016.  Nevertheless, the applicant failed to attend.  Despite attempts were made to contact the applicant, the efforts were in vain.  A letter was sent on the same date requiring the applicant to provide written explanation. On 1 September 2016, the applicant explained that she waited for a bus in Tuen Mun for a long time and she reached the venue for hearing at 16:00 that day [4.1].  The Board refused to accept her explanation [4.2] and decided to proceed with her claim without an oral hearing [4.3].

10.  Having considered the evidence, the Board found that (i) the case was about domestic violence without any state involvements [7]-[9]; (ii) there was no evidence of any injuries that amounted to severe pain and suffering [10]-[13]; and (iii) state protection and internal relocation were both viable alternatives [14]-[19]; [23].  Independently assessed, her claim also lacked credibility [30]-[32].  For these reasons, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk.  By the Board’s First Decision dated 3 March 2017, her appeal against the Director’s First Decision was therefore dismissed.

11.  On 15 May 2017, the applicant filed her notice of appeal/petition against the Director’s Second Decision.  She was three weeks out of time [6]. The Board rejected her explanation that the Director’s Second Decision was sent to her old address as it was her own responsibility to inform the Immigration Department about the change of address [9].

12.  Insofar as her appeal against the Director’s assessment on BOR 2 risk, the Board reviewed her notice of appeal/petition and found that she merely repeated her case without advancing any further details other than those already stated and dismissed in her claim on Torture risk, BOR 3 risk and Persecution risk [10].  As a result, by the Board’s Second Decision, the Board refused to exercise its discretion to allow the late filing.

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

13.  The applicant has filed Form 86 dated 24 October 2018 for leave to apply for judicial review of the Board’s Second Decision.

14.  In her affidavit in support of her application, the applicant stated she wanted to stay in Hong Kong as her life will be in danger if she returns to her country.

DISCUSSION

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

17.  The issue before this Court is whether the Board was in error in refusing to extend time for the applicant to file her notice of appeal because of the delay.

18.  It is clear that the Board had considered the applicant’s facts, in particular, by reviewing her case in the Board’s First Decision and found that the applicant did not have additional facts in support of her appeal against the Director’s Second Decision rejecting her claim on BOR 2 risk.

19.  Also, The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

20.  The reason set out in her affirmation is not a valid reason to challenge the Board’s Decision.

21.  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.

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

CONCLUSION

23.  I refuse to grant leave for the applicant 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