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

HCAL 970/2024

[2024] HKCFI 2536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 970 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 17 October 2016 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 expires on 17 January 2017. Her application was filed on 24 June 2024, which is about seven and a half years’ late. This issue will be dealt with below.

2.  The applicant requested an oral hearing. She appeared before the Court on 28 August 2024.

The applicant

3.  The applicant, aged 45, is an Indonesian. She last arrived in Hong Kong on 18 March 2015 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 11 November 2015 after she was arrested by the police for theft and obtaining property by deception the day before. The applicant made a non-refoulement claim on 14 January 2016. The claim was made on the basis that, if refouled, she would be harmed or even killed by the creditor of her late husband (“the creditor”) because she failed to settle his debt. On 8 April 2016, the applicant was convicted of the said offences and was sentenced to imprisonment of ten months.

4.  According to the applicant, she married her husband in around 1994. In around 2004, the applicant discovered that her husband had borrowed money from the creditor. Although the creditor and his underlings came to the applicant’s home demanding loan repayment in a menacing manner almost every day, no report was ever filed with the police. The creditor ceased the debt collection activities after the applicant’s husband passed away in April 2006 and she thought everything had been settled.

5.  In around 2010, while the applicant was working in Singapore, she received a call from the creditor demanding loan repayment on behalf of her late husband. Under his persistent demand, the applicant made two repayments. In around early 2013, while working in Hong Kong, the applicant received a call from the creditor again demanding loan repayment. She told him that she could not afford repayment and then hung up the call out of fear. Thereafter, the creditor called her once a week. The applicant last communicated with the creditor in October 2015, during which he threatened to kill her and kidnap her children if she failed to repay the loan. The applicant warned the creditor that she would report the matter to the police and then hung up the phone.

6.  During the applicant’s last contact with her uncle, she was informed that the creditor continued visiting her home and took away valuable belongings. The applicant was of the view that she could not seek protection from the police because they were corrupt and she could not afford bribing them. The applicant considered internal relocation not viable as well because she believed that the creditor would be able to locate her anywhere within Indonesia given his financial capability. She also claimed she had no relative to rely on elsewhere.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 May 2016 (“the Director’s 1^st Decision”).

The Director’s Decisions

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

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

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

9.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that (i) the past action of the creditor indicated that he had no real intention to seriously harm or kill the applicant [15]; (ii) the applicant’s delay in seeking non-refoulement protection was inconsistent with the behaviour of someone genuinely in fear [15]; (iii) state protection would be available [16]-[20]; (iv) internal relocation would be viable [21]-[25] and (v) the applicant’s case failed to meet any of the requirements under BOR 3 risk [26]-[28], Persecution risk [29]-[32] or Torture risk [33]-[37].

10.  In the Notice of Further Decision dated 28 October 2016, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decision

11.  The applicant appealed the Director’s 1^st Decision to the Board. On 27 September 2016, the Board conducted an oral hearing.

12.  The Board found the material facts given by the applicant lacked sufficient detail and specificity. In particular, she knew nothing about the loan and the creditor [19]. Upon consideration of the country of origin information, the Board noted that under Indonesian law, a contract would only bind the parties to it, so that the applicant should not be responsible for her late husband’s loan to the creditor [35]. Meanwhile, it was merely her speculation that state protection would be unavailable as she had never sought help from the police [36]. In any event, there was also no evidence of involvement from the authorities and the applicant’s claimed suffering did not reach the requisite level of severity [47]-[49].

13.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 3 risk or Torture risk [53]-[61], [64]-[66]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision.

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

14.  The applicant has filed Form 86 dated 20 June 2024 for leave to apply for judicial review of the Board’s Decision.

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

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. Before me, the applicant said that she did not mean that the Board was wrong. However, she asked me to review the Board’s Decision.

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 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.

21.  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

22.  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.