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

HCAL 99/2022

[2022] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 99 of 2022

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 20 October 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 27 January 2022 is late for about four years. I shall deal with this issue below.

2.  The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for her. However, due to COVID-19 pandemic, the government discouraged social gathering and the court had to suspend hearings for a period of time.  The Court sent a letter to the applicant and invited her to make further submissions in order to dispense with hearing in court.  The letter further said that if she takes the view that it is not possible to make written submission in place of oral hearing, she should so inform the court, stating her reasons why this is the case and if she does not respond to the letter within 7 days, the court will proceed to consider her application on paper.  The written decision will be sent to the application in due course.

3.  The applicant did not respond to the court’s letter.

4.  Under Order 53 rule 3(3) of the RHC, it provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application….”

Under Order 1A rule 1(b) of the RHC, the underlying objectives of the rules are to ensure that a case is dealt with as expeditiously as is reasonably practicable.  Under Order 1B rule 1(1), the court has the power to take steps to make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A. I consider that the court has the power to dispense with open hearing of the applicant’s application without doing injustice to her application.  I therefore proceed to consider her application on paper.

The applicant

5.  The applicant is a national of Indonesia.  She came to Hong Kong and worked as a domestic helper on 7 July 2006. Her employment contract was prematurely terminated. She obtained permission to stay as a visitor until 28 August 2009. She overstayed and was arrested by police on 9 August 2012. She was charged and convicted of the offences of overstaying and taking up unapproved employment. She was sentenced to 3 months’ imprisonment. A removal order was issued against her on 7 November 2012. On the same day, she lodged a torture claim. Her appeal against the removal order was dismissed on 30 November 2012 and her torture claim was also refused on 18 March 2013. She lodged non-refoulement claim on the ground of cruel, inhuman or degrading treatment or punishment by written representation dated 24 May 2013 and further representation dated 18 March 2014. Her non-refoulement claim was considered under the relevant risks other than torture risk.

6.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by Wajib, her husband and Joni because she could not repay to Joni the money that Wajib owed him. She had told the immigration officer her story below.

7.  She came from a poor family. Her stepmother borrowed money for her to continue with her education. Through her brother-in-law, she married with Wajib. Wajib borrowed a loan of IDR30 million for his business of trading motorcycles from a loan-shark. The loan was drawn under the names of her husband and herself. The business failed. Wajib became depressed and he got drunk from time to time. He did not carry on his business. She told him to attend his business in order to repay the loan. Wajib became agitated and assaulted her by slapping her with hands. He also threatened to kill her. She did not report to police.

8.  Then Wajib dealt in dangerous drug and asked her to pass the box of dangerous drug to other people. At first, she did not know the substance was dangerous drug. Subsequent, she discovered that it was dangerous drug. She confronted with Wajib about it. Wajid assaulted her and threatened to kill her if she told the police about it. She did not report the matter to police.

9.  In the meantime, Jone also came with other people and demanded repayment of the loan. He threatened her that if she could not pay, he would kill Wajib and her. She told Wajib about it. Wajib suggested that she slept with Joni or marry him. She refused. She could not withstand Wajib’s attitude and Joni anymore. She came to Hong Kong to work as a domestic helper in July 2006 without telling Wajib. She called Wajib whilst she was in Hong Kong. Wajib was angry and demanded money from her as he had also borrowed another loan. She did not remit money to him and she changed her mobile phone number in order to avoid Wajib. Details of her story are set out in paragraph 8 of the Director’s First Decision described below.

The Director’s Decisions

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

a.     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”);

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”); and

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”).

11.  By the Director’s First Decision, the Director refused the applicant’s claim on the grounds of BOR3 risk and Persecution risk.  The Director found that the level of risk of harm against the applicant from Wajib and Joni upon refoulement was assessed to be low because (i) the evidence showed that both Wajib and Joni did not have the intention of harming or killing her [14] and the state was not involved [15]; (ii) state protection would be available to her [16]; and (iii) internal relocation was an option open to her [17].  In the Notice of Further Decision dated 5 September 2017, the Director found that there was no evidence to show that her right to life would be violated upon her return and rejected her claim on BOR 2 risk (“the Director’s Second Decision”).

12.  The Director’s First Decision and the Director’s Second Decision will be referred to as “the Director’s Decisions”.

The Board’s Decision

13.  The applicant appealed to the Director’s Decisions to the Board.  The applicant attended a hearing before the Board on 3 October 2017. Having consider the evidence [48-59], the Board finally came to the conclusion that her evidence was largely based on speculation and hearsay. The Board did not accept her factual evidence in relation to her being assaulted by her husband, or threatened by Joni. It further found that state protection was available to her and it would not be too harsh for her to relocate internally upon her return to Indonesia. There are government run and non-government run organizations in Indonesia that could provide support and services to women in need of protection from domestic violence [61]. On such bases, the Board dismissed her appeal.

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

14.  The applicant filed Form 86 dated 27 January 2022 for leave to apply for judicial review of the Board’s Decision.

15.  In her affirmation in support of her application, the applicant said she did not want to go back to Indonesia as her life would be at risk.

DISCUSSION

16.  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. The delay is significant and serious. I shall first consider the prospect of the intended judicial review.

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

18.  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).

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 the merits of the applicant’s case and given reasons in support of its conclusion. The Board rejected her evidence on the facts of her case, which means she does not have any factual basis in support of her claim. Her ground in support of her application does not assist her application.

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 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