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

HCAL 283/2024

[2024] HKCFI 1337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 283 of 2024

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 present 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 18 October 2023 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 is 18 January 2024.  Her application was filed on 6 February 2024.  It is about 2 weeks’ late. This issue will be dealt with below.

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 15 April 2024.

The applicant

3.  The applicant, aged 36, is an Indonesian. She last arrived in Hong Kong on 25 April 2019 to work as a foreign domestic helper. Her contract was prematurely terminated on 25 May 2019 and she overstayed since 9 June 2019. The applicant surrendered to the Immigration Department on 18 November 2020 and made a non-refoulement claim on 30 December 2020.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her mother because of her sexual orientation.

4.  According to the applicant, she entered into a marriage arranged by her parents. Although she and her husband were not divorced, she heard that he had married a second wife.  The applicant first came to Hong Kong to work as a foreign domestic helper in 2017, during which she became a lesbian and had a relationship with another foreign domestic helper (“her partner”).  She believed that her brother had found out from Facebook about her becoming a lesbian and told her mother about this in late 2017.  Her mother then tried calling the applicant, but she did not pick up her mother’s call because her employer did not allow her to use the phone while working and she was also afraid of talking to her mother.  It was until 2018 that the applicant finally spoke to her mother.

5.  The applicant claimed that lesbian was forbidden in Islam. As her mother was a faithful Muslim, she criticised her bringing disgrace to the family and threatened to kill her if she returned to Indonesia.  Since then she had no further contact with her mother. She also forgot her Facebook login details and lost contact with other family members. Her last contact was with her sister in April 2018, in which she mentioned nothing about her mother.

6.  The applicant went back to Indonesia and stayed in her friend’s house for two weeks in 2019, during which she did not encounter anything eventful. She started another contract with a different employer in Hong Kong in April 2019, but her contract was prematurely terminated on 25 May 2019.

7.  The applicant was of the view that she could not get protection from the authorities because lesbian is prohibited in Indonesia. She also had no idea whether internal relocation would be a viable option for her.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 7 January 2022 (“the Director’s Decision”).

The Director’s Decision

9.  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 the low intensity of past ill-treatment from her mother indicated that she did not face a real and foreseeable risk of harm [14]-[15]. The applicant’s delay in seeking protection also indicated that her risk of harm was not as serious and imminent as claimed [17].

10.  In any event, (i) state protection will be available to her upon her return [18]-[22]; (ii) internal relocation is viable [16], [23]-[25] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [26]-[30], Persecution risk [31]-[35] or Torture risk [36]-[39].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 3 October 2023, the Board conducted an oral hearing.

12.  During the hearing, the applicant told the Board that she last communicated with her family in 2017 rather than in 2018 [43]-[44]. She also said that she helped her parents in the farm and worked in a garment factory prior to working as a foreign domestic helper in Hong Kong [47]. Moreover, she did not know the address of her friend’s house where she lived for two weeks when she returned to Indonesia in 2019 and had even lost contact with her [50]. The applicant confirmed that she and her partner were still together, but she was unsure about the views of her partner’s parents on their lesbian relationship [53]-[54].  As for the possibility for relocation, the applicant claimed that her family would find her even if she moved elsewhere, but she could not provide any supporting evidence [59].

13.  The Board accepted that the applicant had a close and intimate relationship with her partner in Hong Kong, which could be perceived by her family as a lesbian relationship [62].  However, it did not find the applicant’s account that her mother had threatened her with death credible because of the inconsistencies of her evidence.  It therefore found that her mother’s death threat was implausible. [63]-[68].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [12]-[14], [71]-[73], BOR 2 and BOR 3 risk [15]-[17], [74] or Torture risk [18]-[19], [75]-[76].  In any event, internal relocation within Indonesia was also a viable option [69], [77]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

15.  The applicant has filed Form 86 dated 6 February 2024 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

17.  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.

18.  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).

19.  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 the Board was not wrong in its decision.

20.  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.”

21.  The applicant’s claim is solely on the basis that, because of her sexual orientation, her mother will kill her if she returns to Indonesia.  Having considered the evidence, the Board had, for the reasons given in paragraphs 63 to 68, found that her evidence was incredible.  It therefore rejected her evidence on this aspect.  On a logical analysis of the facts of the case, the Board was entitled to come to its conclusion as it had done in this case.  The applicant had already confirmed that the Board was not wrong.

22.  The applicant has failed to raise any valid ground to challenge the Board’s Decision.  There is no reason that this Court should interfere with the Board’s finding of the facts of the case.

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

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