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

HCAL 2252/2023

[2024] HKCFI 1391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2252 of 2023

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 16 February 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing date of 15 April 2024 was fixed for her to appeal before the Court.  However, she was absent without prior notice to the Court.  I shall deal with her application on paper.

The applicant

3.  The applicant, aged 46, is an Indonesian.  She last arrived in Hong Kong on 11 November 2016 to work as a foreign domestic helper.  She did not depart at the conclusion of her employment contract and overstayed since 12 November 2018.  The applicant was arrested by the police for overstaying on 25 September 2020 and she made a non-refoulement claim on 28 September 2020.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because of his bad temper and jealous character.

4.  According to the applicant, she married her husband in 2004.  She claimed that her husband started treating her violently after the birth of her elder daughter in 2006.  He would hit her every day with hanger or metal bar.  On one occasion, her husband suddenly became angry when he came home.  He grabbed the applicant’s hair and banged her head to the wall many times.  He also slapped her daughter when she tried to intervene.  The applicant sustained severe pain and headaches as a result, but she did not seek any medical treatment.  She suspected that her husband attacked her out of jealousy because he thought she mingled with other men when she went out.  On another occasion, her husband hit her right calf with a metal bar.  Her right calf was bruised as a result and it took her three days to recover.

5.  One day in mid-2009, when the applicant was pregnant for about six months, her husband felt hungry and blamed her for not preparing any food for him.  He then got furious and started hitting her in spite of her pregnancy.  The applicant fell on the floor and he stepped on her stomach once.  The applicant later attended a clinic and found there was a miscarriage.  

6.  Apart from the physical abuse, the applicant also claimed that her husband often verbally threatened her.  She had never told her family about her husband’s violence, as she did not want them to worry about her.  She also did not make any attempt to seek help from her neighbours. 

7.  In 2014, the applicant could no longer tolerate the ill-treatment from her husband and she decided to work overseas upon the introduction from a middleman.  She went to Jakarta for training and entrusted her children to her mother and younger brother.  By the end of 2014, the applicant departed Indonesia for Hong Kong.

8.  The applicant kept contact with her family while in Hong Kong.  She last contacted them in April 2021, but they had no updates on her husband. 

9.  The applicant considered internal relocation not viable because her husband would be able to locate her within Indonesia through his connections.  She also did not thought about seeking assistance from the police because she did not want her husband to be arrested or jailed.  In any event, the police would not render their assistance on matters concerning domestic violence.

10.  Details of the applicant’s story can be found in paragraphs 9-44 of the Director’s Decision dated 16 June 2021 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found the applicant’s dispute with her husband was purely a case of personal grudge on family issue with no state involvement [50].  In any event, given that there had been an elapse for such a long time since she last met her husband, her claimed risk should have dissipated.  The applicant’s delay in seeking non-refoulement protection also indicated that her risk of harm was not as imminent as claimed [51].

13.  Furthermore, (i) state protection will be available to her upon her return [53]-[57]; (ii) internal relocation is viable [49], [58]-[59] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [60]-[65], Persecution risk [66]-[70] or Torture risk [71]-[74].

The Board’s Decision

14.  The Board received the applicant’s Notice of Appeal against the Director’s Decision on 11 September 2023, which was 2 years and 2 months beyond the stipulated appeal timeframe [13].

15.  The Board found that the Duty Lawyer received the Director’s Decision on 16 June 2021 and served it on the applicant during a meeting at its office on 21 June 2021 [10].  The applicant claimed that she received the appeal form to fill in on 4 September 2023, after which she sent out on 5 September 2023.  She then received the Board’s request for explanation for lateness of appeal on 18 September 2023, which she sent out on 19 September 2023 [13].  The applicant enclosed a statement to the Notice of Appeal, stating that she continued to fear harm from her husband, but did not provide any information relevant to her failure to make the appeal within the prescribed period [14].

16.  The Board was not satisfied that the applicant had exercised all due diligence to make the appeal within time but that she failed to do so because of circumstances beyond her control [16].  Based on such findings, the Board did not allow the applicant’s late filing.  Her appeal was therefore dismissed and the Director’s Decision was confirmed.

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

17.  The applicant has filed Form 86 dated 14 December 2023 for leave to apply for judicial review of the Board’s Decision.

18.  In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

19.  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).

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

21.  The question before the Court is whether the Board was right to refuse her application for filing the notice of appeal out of time.  The Board relied on section 37ZT of the Ordinance in support of its decision of refusal.

22.  Section 37ZT of the Ordinance provides:

“37ZT. Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)

(4) For the purposes of subsection (3), the fact that a person attempted to file one or more notices of appeal that do not comply with section 37ZS(2)(a) or (ab), whether within the period specified in section 37ZS(1) or otherwise, must not be taken as evidence that the person had exercised all due diligence to file a notice of appeal within the period. (Replaced 7 of 2021 s. 19)

(5) If the Appeal Board allows the late filing of the notice of appeal, it must, by written notice to the person filing the notice, inform the person of the Board’s decision. (Added 7 of 2021 s. 19)

(6) If the Appeal Board does not allow the late filing of the notice of appeal, it must, by written notice to the person filing the notice—

(a) inform the person that the Board refuses the notice as it is filed out of time; and

(b) give reasons for the refusal.  (Added 7 of 2021 s. 19)”

23.  The Board had given its reasons below to refuse extension of time for the applicant to file her notice of appeal:

“15. … … The statement of reasons and evidence by the Appellant, detailed above, provides only that she received the appeal form on 4 September 2023. Relevant to that, the NoD expressly states that, if she is aggrieved by the decision in the NoD she my lodge an appeal/petition and that such an appeal/petition must be filed within 14 days from the date of the NoD. The Appellant does not state when she received the NoD and/or whether she took any step to lodge a NoA within the timeframe identified in the NoD. However, the DLS has confirmed its receipt of the NoD on the Appellant’s behalf on 16 June 2021, and that it provided that decision to her on 21 June 2021.

16 … … The evidence before me does not identify any steps taken by the Appellant relevant to her exercise of due diligence to file the NoA within the required time. Nor does the evidence establish that the Appellant failed to file the NoA within the prescribed period because of circumstances beyond her control. I am not satisfied that either of these requirements is met.

17 For the reasons given above, the Board does not allow the late filing of the NoA.”

24.  On record, the Board had given due notice to the applicant, stating the reasons for the refusal in accordance with section 37ZT (6)(b) of the Ordinance.

25.  The applicant has raised no valid reason to challenge the Board’s Decision.

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

CONCLUSION

27.   I refuse to grant leave to the applicant 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