Miftahul Khurota Ayun v Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Judgment Date01 March 2023
Neutral Citation[2023] HKCA 251
Subject MatterMiscellaneous Proceedings
Judgement NumberCAMP314/2022
CourtCourt of Appeal (Hong Kong)
CAMP314/2022 MIFTAHUL KHUROTA AYUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 314/2022

[2023] HKCA 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 314 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 109 OF 2022)

________________________

BETWEEN

Miftahul Khurota Ayun Applicant
and
Torture Claims Appeal Board / Putative
Non refoulement Claims Petition Office Respondent
and
Director of Immigration Putative
Interested Party

________________________

Before: Hon Kwan VP and Barma JA in Court
Date of Written Submission: 8 September 2022
Date of Judgment: 1 March 2023

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 25 May 2022, Deputy High Court Judge To refused the applicant’s application for extension of time for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning her non‑refoulement protection claim[1].

2. On 24 August 2022, the judge dismissed the applicant’s application for extension of time to appeal against the said decision as there is no merit in the intended appeal[2].

3. On 26 August 2022, the applicant filed a renewed application with the Court of Appeal for extension of time to appeal against the decision of the judge.

4. The applicant is a national of Indonesia. She is 39 years old. She entered Hong Kong to be employed as a foreign domestic helper on 14 May 2008 but was prematurely terminated. She did not return to Indonesia and as per her non-refoulement claim form dated 17 January 2017 received by the Immigration Department on 23 January 2017, she sought non-refoulement protection on the basis that she would be harmed or killed by loan sharks due to a debt incurred by her father.

5. By a Notice of Decision dated 8 February 2017, the Director rejected the applicant’s claims on all then applicable grounds including torture risk[3], BOR 3 risk[4], BOR 2 risk[5] and persecution risk[6].

6. The applicant appealed against the Director’s decision but failed to attend the hearing scheduled on 12 January 2018 before the Board. The Board had properly served a written notice on the applicant but no response was received. Therefore, the Board determined the applicant’s appeal on paper in her absence. The Board was not satisfied on the available materials that the applicant’s case was proved and that she would be at risk of harm if she is returned to Indonesia. In light of its findings, the Board rejected the applicant’s claim on 11 July 2018.

The judge’s decision

7. On 31 January 2022, some 3 years later after the decision of the Board, the applicant applied for leave to apply for judicial review. She did not provide any grounds in her application or her affirmation in support, other than stating that she did not wish to return to Indonesia as her life is still at risk there.

8. The applicant’s written submissions received by the Court on 19 April 2022, recited general principles in non-refoulement cases but did not elaborate or explain their relevance to her situation. In any event, the judge rigorously examined the Board’s decision and found no fault with the Board. There was no realistic prospect of success in the applicant’s proposed judicial review. Furthermore, there was no explanation of the delay of three years by the applicant in bringing her application to seek leave for judicial review.

9. The applicant further failed to...

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