SUNIPAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

HCAL 2640/2024 [2025] HKCFI 2374 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2640 of 2024 BETWEEN Sunipah Applicant and Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent and 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; consideration of documents only; or consideration of documents and oral submissions by the Applicant in open court; Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observation for the Applicant: Introduction This is an application by Madam Sunipah (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 27 April 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 27 April 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant and the Claim The Applicant is an Indonesian born on 27 July 1984 in Indramayu Regency, West Java Province, Indonesia. She received 9 years of education and had 17 years of work experience. The Applicant claimed that her husband (“Husband”) would ill-treat or kill her if she returned to Indonesia. She claimed that she married Husband in October 2005 and she became pregnant with their son in November 2005. After getting married, the Applicant and Husband got into arguments repeatedly over financial matters. Husband became abusive and attacked the Applicant from time to time. He sometimes strangled the Applicant. In March 2009, the Applicant came to Hong Kong to work as a foreign domestic helper. She maintained regular contact with Husband for the first two years in Hong Kong. However, after hearing about Husband’s extra-marital affair in Indonesia, she wanted to divorce Husband. The Applicant confronted Husband about his extra-marital affair but he denied it. The Applicant then changed her phone number to avoid Husband. The Applicant overstayed in Hong Kong since 17 April 2021 after her employment in Hong Kong came to an end on 26 March 2021 and her application for extension of stay was refused. She claimed that it would not be safe for her to go back to Indonesia because Husband would harm or kill her. The Director assessed the Claim on the following grounds under the unified screening mechanism (“USM”): risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 ("Ordinance" and “torture risk”); risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2 risk”); risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”). By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal. On 27 December 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named both the Director and the Board as the proposed respondents. Legal principles applicable to judicial review In a judicial review, the court does not step into the shoes of the decision makers. In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that: “The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI [i.e. country of origin information] 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.” In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success. Discussion The Applicant filed the Form 86 on 27 December 2024, albeit dated 16 November 2024. Order 53 rule 4(1) of the Rules of the High Court (“RHC”) provides that: “An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.” The Board’s Decision was issued on 27 April 2023. As such, the Applicant should have filed the Form 86 latest on 27 July 2023. The Form 86 was filed on 27 December 2024 and it was filed late. The Applicant was late by one year and 5 months in filing the Form 86. This is a very substantial and inordinate delay. No explanation has been provided in the Form 86 or the Supporting Affirmation for the late filing of the Form 86. The Applicant has not made any application for time extension to file the Form 86. The Applicant attended the court hearing of 10 April 2025 (“Court Hearing”) and said that she did not know how to apply for judicial review and thus was late in filing the Form 86. Ignorance of rules and regulations is usually not an acceptable explanation for delay in court proceedings. In Po Fun Chan v Winnie Cheung (supra), Litton NPJ opined at §52 of the judgment that where an application was made many months after the time limit mentioned in order 53 rule 4 of the RHC, the judge was entitled to refuse leave, however strong the complaint might otherwise be. As such, this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay. For the sake of good order and completeness, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matters. In the Form 86, the Applicant did not put forward any ground for her intended judicial review. In the Supporting Affirmation, the Applicant annexed a statement (“Statement”) putting forward the following grounds for her intended judicial review: the DOI Decision and the Board’s Decision were unreasonable and unfair; the Board failed to give her sufficient time and chance to arrange for relevant evidence; the Director failed to give proper weight to the presence of state acquiescence. She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; the Director had failed to consider or give enough weight to country of origin information (“COI”) supporting the Applicant’s case that the police in her country would not be able to protect her; and corruption and incompetency of the administration in her country was still a very serious problem; and the Director failed to attain the high standard of fairness required by the Wednesbury test. In the Statement, the Applicant raised various complaints against the Director. This is an application for leave for judicial review of the Board’s Decision, not the DOI Decision. Hearing of the Appeal before the Board was de novo in nature (§39 of the Board’s Decision). Errors (if any) in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision. Furthermore, the aforesaid grounds stated in the Supporting Affirmation were bare assertions without particulars or supporting. The Applicant complained that the Board “failed to give him [sic] sufficient time and chance to arrange relevant evidence to his [sic] non-refoulement claim as well as his [sic] appeal.” (§1 of the Statement) The Applicant first came to Hong Kong in March 2009. She learned about the extra-marital affair of Husband in 2010. She confronted Husband in 2010 and cut her communication with Husband in 2010 but did not raise the Claim until January 2022. She attended the screening interview with the Immigration officer on 14 April 2022 and attended hearing before the Board on 14 November 2022. If she was in fear of harm from Husband, she had more than 11 years since her last contact with Husband to arrange for evidence supporting the Claim. As such, the Applicant had ample time to arrange for evidence in support of her case. Her aforesaid complaint has no merits whatsoever. The Applicant did not produce any supporting documents other than copy of the Board’s Decision to the Supporting Affirmation. She attended the Court Hearing but produced no further supporting documents. She told the court that she had forgotten what other evidence she wished to adduce before the Board. I do not see that any of the grounds put forward in the Statement are reasonably arguable in the Applicant’s intended judicial review. The Board accepted the Applicant’s testimony as credible. It found that according to the Applicant, Husband did not appear to be interested in pursuing the Applicant. It was the Applicant’s own case that Husband never visited their son in the past 12 years and he appeared to have moved on with another woman. Further, the Applicant intended to divorce him and she would not have anything to do with him after the divorce. The Board did not accept that Husband would harm her if she returned to Indonesia. The Board also found that state protection would be available to the Applicant in Indonesia. It also found that her family, including her teenage son, would also offer her protection if necessary (§63 of the Board’s Decision). The Board also found that she could safely relocate within Indonesia with her age, education and work experience. As pointed out in the Nupur Mst case (supra), assessment of evidence, COI materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board. The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board. I found none in this case. Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the relevant grounds for seeking non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. In §§46-85 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM. The Board found that nothing in this case could show that any acts or acquiescence by the state or public body would be involved in oppressing the Applicant when she returned to Indonesia. The element of official capacity could not be established for her torture risk claim. Her claim under this ground failed. The Board found that there were no substantial grounds for believing that the Applicant would suffer severe ill-treatment or serious harm from Husband upon refoulement. Effective state protection was available to and reasonable and safe internal relocation was possible for the Applicant. The Board found that the Applicant was unable to establish her claim under the BOR 3 risk. The Board found that there was no sufficient evidence to show a well-founded fear of persecution. In addition, none of the reasons referred to in Article 33 of the Refugees Convention could be established. The Applicant’s fear had nothing to do with the state authority or a significant portion of the population of Indonesia. Thus, her claim on the ground of persecution risk also failed. The Board also found that there was insufficient evidence to show any risk to life on the part of the Applicant. In addition, effective state protection was available, and safe and reasonable internal relocation was viable. The Applicant’s claim under the BOR 2 risk failed. It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact which were exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings for the Claim. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable and has no realistic prospects of success. Conclusion The Form 86 was filed out of time without leave of the court or satisfactory explanation for the late filing. Having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review. Dated the 4th day of June 2025. (Allen LEE) 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 Applicants: If leave has been granted, the Applicant or the Applicant’s solicitors must: 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)). Sent to the Applicant on 4/6/2025 Sunipah Applicant’s ref. no: Nil. 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 4/6/2025 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 20277 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 151/22 (Formerly RBCZ 5000054/22) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2) Form CALL-1