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HCAL 2732/2018
[2021] HKCFI 1659
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2732 of 2018
BETWEEN
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Fitri Kristiana |
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:
(1) Extension of time for application for leave to apply for judicial review be refused
(2) 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 12 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application filed on 3 December 2018 is late. 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 an Indonesian national. She came to Hong Kong on 27 August 2014 as a domestic helper. Her employment contract was terminated prematurely. She overstayed and was arrested by police. She lodged her non-refoulement claim with the Immigration Department on 29 May 2015.
5. The applicant claimed that, if refouled, she would be harmed or killed by her husband because she wanted to divorce him and refused to support him financially. He had threatened her that if she did not remit money to him as he requested, he would beat her, burn her alive and even kill her if she returned to Indonesia. Details of her story are set out in paragraph 6 of the Director’s Decision 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 Notice of Decision dated 23 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of being harmed or killed by her husband if she returned to Indonesia was assessed to be low [10]; that state protection would be available to her [14] and that internal relocation was an option open to her [18]. Based upon the finding of the facts, the Director rejected her claim on all the risks above.
The Board’s Decision
8. The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator of the Board on 6 March 2018.
9. The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision. In the following paragraphs of the Board’s Decision, the Board recorded:
“65. … … The Board has concluded the Appellant has not told the truth in relation to her claims that she was harmed or assaulted by her husband and escaped from her home in Indonesia, and that she has since been threatened by her husband while she has been living in Hong Kong.
66. ... … The Board does not accept the Appellant’s relationship with her husband has broken down for the reasons she has claimed, and the Board does not accept the Appellant’s husband has threatened the Appellant on the telephone that he will harm her, or beat her, or burn her or kill her if she returns to Indonesia.
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68. …the Board considers the Appellant would not be at risk of any harm if she returned to Indonesia. The Board finds that there is not a real risk the Appellant would face any of the proscribed forms of harm should she return to Indonesia.”
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant filed Form 86 dated 3 December 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affidavit in support of her application, the applicant said that she wanted to review the Immigration Department’s decision as they disregarded her dangerous situation.
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. I shall first consider the prospect of the intended appeal.
13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. Her reasons in support of her application do not assist her.
16. 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.
17. The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to extend time for the applicant to make her application for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 28th day of June 2021
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(K.H. LI) |
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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 28/06/2021
Fitri Kristiana
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 28/06/2021
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9307/17/11/318/I913
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2779/17 (Formerly RBCZ 11866/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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