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HCAL 229/2019
[2022] HKCFI 719
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 229 of 2019
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Nur Afnika |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 20 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 24 January 2019 is late for over 7 months and 20 days. I shall deal with this issue below.
2. 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.
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 had previously worked as a foreign domestic helper in Hong Kong. Her last entry in Hong Kong was on 27 August 2011 as a visitor but she did not leave when her limitation of stay expired. She had overstayed and was arrested by the police on 10 May 2012 and was released on bail. Nevertheless, she did not report to the recognizance office and absconded. On 30 July 2013, she was arrested by the Immigration Department. On 23 December 2013, she lodged a non-refoulement claim which was later treated as withdrawn because she failed to return the non-refoulement claim form. On 23 February 2016 and 7 March 2016, she wrote to seek to reopen her non-refoulement claim. On 21 March 2016, the Immigration Department acceded to her request.
5. The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by the moneylender, Edi. According to the applicant, she and her father borrowed money from Edi for her mother’s medical expense and mortgaged their house for the loan. Nevertheless, she missed two repayments. Edi and his men visited the applicant’s house and damaged it, threatening that they would seize the house if the applicant failed to repay. They also kidnapped the applicant and one of them attempted to rape her. Although she escaped, the top part of her pinky finger was chopped off. Out of fear, she moved to different places and eventually fled to Hong Kong for protection. Details of her claim were set out at paragraph 8 of the Director’s Decision and paragraphs 12 to 15 of the Board’s Decision as described below.
The Director’s Decision
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 a Notice of Decision dated 25 October 2016, the Director refused her claim (“the Director’s Decision”). The Director found that no substantial grounds were present for believing that there would be real or substantial risk of harm upon the applicant’s refoulement because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]-[22]; (ii) state protection would be available to her [23]-[25]; and (iii) internal relocation was an option open to her [26].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. She attended the oral hearing on 19 January 2018 and gave oral evidence before the Board with the assistance of the interpreter [20].
9. Having consider the applicant’s evidence, the Board concluded that, while accepting that there were notorious moneylending activities in Indonesia, the applicant’s version of events was inconsistent and likely to be fabricated for the non-refoulement claim. For example, she was inconsistent in stating who was the borrower of the loan and was also unable to provide any details surrounding the loan [32]. The Board also noted that the applicant’s immigration history in Hong Kong was poor [33]. Even taking the applicant’s claim to the highest, the Board found that there was no evidence to suggest that the moneylenders would target her instead of her father [34]-[35]. Besides, given the passage of some 10 years, the Board found that the applicant could safely relocate to other cities [36]-[38]. In assessing the individual grounds, the Board further held that there was no evidence of state involvement [44]. For these reasons, the Board rejected her claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant filed Form 86 dated 24 January 2019 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant did not set out any specific ground for her application.
DISCUSSION
12. As mentioned in paragraph 1 above, 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. Her delay is significant and serious. I shall first consider the prospect of the intended judicial review.
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
14. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
15. 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.”
16. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The applicant has raised no valid ground to challenge the Board’s Decision.
17. 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.
18. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
19. 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.
Dated the 17th day of March 2022
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 17 March 2022
Nur Afnika
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 17 March 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5104/16/11/43/1498
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1004/16 (Formerly RBCZ 11046/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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