Purbo Pillaningsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 224/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Indonesia. She is now aged 41 (DOB: 7 July 1977).
Cites 4 cases
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HCAL224/2018 [2018] HKCFI 2413 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 224 of 2018 BETWEEN
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 Josiah Lam:
It is further directed that:
Observations for the Applicant Background 1.The Applicant is a national of Indonesia. She is now aged 41 (DOB: 7 July 1977). 2.The Applicant claimed she would be harmed or killed by a loan shark because she was unable to repay her mother’s debt. 3.The Applicant claimed her problem started in early 2009 when she was working as domestic helper in Singapore. Her mother in Indonesia borrowed 30 million rupiahs from a loan shark. She required the Applicant to help her to repay the debt. The Applicant later returned to Indonesia after she had completed her employment contract in Singapore. She gave 5 million rupiahs to her mother. 4.In May 2009, three men confronted the Applicant and demanded her to repay one million rupiahs to the loan shark. The Applicant was unable to pay. The men then adducted her and took her to another place. They put a knife to the Applicant's neck. The Applicant struggled and was cut by the knife, leaving a visible scar there. She was assaulted and raped. After the ordeal, the men dropped the Applicant at her home. 5.The Applicant said she was too scared to seek treatment or complain to the police. She feared she would be assaulted again so she fled to an employment training centre in East Jakarta. After receiving vocational training for two months, the Applicant came to Hong Kong in July 2009 to work as domestic helper. She remitted money to her mother for repayment to the loan shark. However, in late 2009 the Applicant received a letter from the loan shark. The loan shark threatened he would kill the Applicant unless she would repay the 30 million rupiahs borrowed by her mother by 2011. 6.In mid-2010, the Applicant’s mother called the Applicant to say she and the other family members had moved to a place called Klaten to avoid the loan shark. 7.In August 2010, the Applicant’s employment contract in Hong Kong was terminated prematurely. She could not find a new employer. She did not leave Hong Kong accordingly because she feared the loan shark. 8.The Applicant said she learnt in late 2010 there was a volcanic eruption in Klaten. She had been unable to contact her family since then. 9.The Applicant had never sought assistance from the Indonesia authorities. She did not know what protection they could offer. 10.The Applicant said internal relocation was not possible as she lacked the means to do so. She also said the loan shark could find her in Indonesia. 11.In the ensuing two-tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 12.On 13 February 2018, the Applicant applied for leave for judicial review. Timeline 13.Things happened in this order: –
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Respondents
14.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
15.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
16.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
17.The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. On 25 October 2016, the Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
18.The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 7 July 2017.
19.The Adjudicator found there were unconvincing and implausible features in the Applicant’s allegations. For example, the Adjudicator found it hard to believe the loan shark in Indonesia would write to the Applicant in Hong Kong to demand repayment instead of communicating with the Applicant’s mother directly in Indonesia. The Adjudicator found it strange the loan shark would target the Applicant but did nothing to the Applicant’s mother and siblings. The Adjudicator also found it was unreasonable that the Applicant made no report to the police about the alleged abduction.[6] The Adjudicator also noted a number of inconsistencies in the Applicant’s evidence. He concluded the Applicant was making up evidence to fit her claim.[7] The Adjudicator did not find the Applicant credible. [8] He did not accept the Applicant’s claim.[9]
20.The Adjudicator considered the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 8 August 2017, he refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
21.In her affirmation, the Applicant said she had not received the Board’s decision. She only learnt from the Immigration Department that her appeal to the Board had been dismissed. Then she went to the collect the Board's decision in person on 12 February 2018.
22.The Applicant complained the Director and the Adjudicator failed to consider the concept of extended state acquiescence; failed to make sufficient enquiry of the conditions in Indonesia; adopted a passive approach and thus failed to achieve high standards of fairness; failed to provide adequate reasons as to why certain country-of-origin information ("COI") was preferred; cherry-picked information; failed to fully consider relevant materials; failed to appreciate her fears.
Court hearing
23.The Applicant requested a hearing. It took place on 3 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
24.The Board’s decision was sent to the Applicant on 8 August 2017. She applied for leave for judicial review only on 13 February 2018. The Applicant said she did not receive the Board's decision in August 2017. She had already moved out of her reported address since February 2017 and she had not so informed the authorities. The Applicant said she was only aware of the Board's decision when she was told by the Immigration Department that she had to go back to Indonesia. That was in February 2018. A friend then advised her to make the current application to the court.
25.The Applicant confirmed all the grounds of judicial review were in the affirmation. She could not elaborate those grounds or give particulars of her complaints against the Director and the Adjudicator.
26.The Applicant further confirmed she had submitted all to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
27.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
28.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[10] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [11].
Late application for leave for judicial review
29.Order 53 Rule 3(1) of the Rules of the High Court reads: –
(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
30.Order 53 Rule 4(1) and (2) of the Rules of the High Court read: –
(1) 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. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
31.It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to grant an extension of time. It is a pre-requisite in late application for leave for judicial review.[12] If the court is not satisfied there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[13]
32.In the present case, the Board’s decision was issued on 8 August 2017. The Applicant only applied for leave for judicial review six months later on 13 February 2018. Excluding the 3-month grace period for filing, she was still three months late.
33.The Applicant said she did not receive the Board's decision sent to her reported address in August 2017. She had already moved out of that address since February 2017 and she had not informed the authorities. The Applicant claimed she was only aware of the Board's decision when the Immigration Department told her in February 2018 that she had to go back to Indonesia. A friend then advised her to make the current application to the court.
34.If the Applicant really did not receive the Board’s decision in August 2017, it was her own fault because she moved out of her reported address without informing the authorities. Even though she said she took out the current application soon after she knew she had to be removed from Hong Kong, she was late in her application by three months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent might not be much but discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issue of general importance and her argument had no merits at all (see below).
35.The Applicant complained the Director and the Adjudicator failed to consider the concept of extended state acquiescence; failed to make sufficient enquiry of the conditions in Indonesia; adopted a passive approach and thus failed to achieve high standards of fairness; failed to provide adequate reasons as to why certain country-of-origin information ("COI") was preferred; cherry-picked information; failed to fully considered relevant materials and failed to appreciate her fears.
36.As said in paragraph 16 above, I shall deal with the current application in relation to Board’s decision only.
37.The Adjudicator’s report showed he had made detailed inquiry of the Applicant’s claim. The Adjudicator’s approach was not passive. He had engaged in joint endeavour with the Applicant in the screening process.
38.The Adjudicator considered the Applicant’s thoroughly. There was no evidence to show the Adjudicator cherry-picked information.
39.The Adjudicator did not find the Applicant credible. He did not believe her claim. He did not accept she had any fear or risk that justified non-refoulement protection. As such, the Adjudicator need not refer to any country-of-origin information ("COI") or to go on to consider such issues as internal relocation, state protection and state acquiescence (including its extended concept).
40.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
41.The current application for leave for judicial review is unjustifiably late. There are no circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. Her late application for leave for judicial review is thereby dismissed.
Dated 21st day of November 2018
| (Alan Ngan) 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
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Notes for the Applicant: If leave has been granted, the Applicant or his 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)). |
Sent to the Applicant on 21/11/2018 Applicant’s ref. no: |
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 21/11/2018 Torture Claims Appeal Board / Director of Immigration Department of Justice, |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 71-73.
[7] Ibid., paras 74-77.
[8] Ibid., para 71
[9] Ibid., paras 78-80.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[11] CACV 219/2018 [2018] HKCA 570, para 14(1).
[12] CACV 110/2016 Kwok Cheuk Kin, para 17.
[13] Ibid., para 19.
Cases cited in this judgment
Further hearings and rulings under HCAL 224/2018