Re Musafaqoh

Read the full judgment text of CACV 335/2018 on BabelCite. This Court of Appeal judgment was delivered on 20 December 2018 before Hon Yeung Acting CJHC, Barma JA and McWalters JA.

Administrative law – judicial review – leave to apply for judicial review – non-refoulement claim – Immigration Ordinance (Cap 115) – ss.37Y, 37ZG – deemed withdrawal of claim for failure to return completed torture claim form – refusal to reopen claim – 'rigorous examination and anxious scrutiny' standard – whether decisions were Wednesbury unreasonable – whether leave to apply for judicial review should be granted – appeal from refusal of leave – whether appeal has any prospect of success. The applicant, an Indonesian national who overstayed her working visa, raised a non-refoulement claim in August 2013. She was served with a blank claim form in November 2014 but failed to return a completed form despite the assistance of the Duty Lawyer Service, and the Director treated her claim as withdrawn under s.37ZG(1) of Cap 115. Her subsequent application to reopen was refused by the Director and her appeal was dismissed by the Torture Claims Appeal Board, which found her explanation for failing to return the completed form (loss of mobile phone, meagre means, inability to contact DLS) implausible given that she had reported to the Immigration Department in January 2015 and had visited DLS at around that time. Deputy High Court Judge Josiah Lam refused leave to apply for judicial review, holding that the Director's and Board's decisions were not Wednesbury unreasonable, contained no errors of law and were not procedurally unfair, and that the applicant's complaints were not reasonably arguable. On appeal, the applicant raised two grounds: (1) the Judge was wrong to hold that there was no state acquiescence or involvement, and (2) the Judge failed to provide detailed reasons. The Court of Appeal dismissed the appeal on the papers (the applicant having been deemed to have waived her right to an oral hearing for non-compliance with the skeleton submissions direction). On Ground 1, the Court held that the ground was entirely unrelated to the decisions of the Judge, the Director or the Board, because none of them decided the non-refoulement claim on its merits; the claim had been deemed withdrawn due to non-compliance with the claim form procedure, and the refusal to reopen turned on whether the applicant had shown circumstances beyond her control, not on the substantive merits. On Ground 2, the Court held that the bare allegation of inadequate reasons was without merit, as the Judge had set out detailed reasons in paragraphs 25 to 36 of the CALL-1 Form, applying the correct statutory framework under ss.37Y and 37ZG of Cap 115 and the 'rigorous examination and anxious scrutiny' standard from Secretary for Security v Prabakar (2004) 7 HKCFAR 187. The Court of Appeal agreed with the Judge that the applicant had no realistic prospects of success and dismissed the appeal.

Legal issues: Whether the applicant has any prospect of success on Ground 1 (state acquiescence or involvement) in the intended judicial review · Whether Ground 2 (lack of detailed reasons) gives rise to any arguable basis for judicial review

Outcome: Appeal dismissed; the applicant has no realistic prospects of success in the intended application for judicial review

Cited by 5 cases · Cites 7 cases

Case No.CACV 335/2018[2018] HKCA 962

Court

Court of Appeal

Date20 Dec 2018

JudgeHon Yeung Acting CJHC, Barma JA and McWalters JA

Case Document

100%Judiciary

CACV 335/2018

[2018] HKCA 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 335 OF 2018

(ON APPEAL FROM HCAL 126/2018)

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RE:

MUSAFAQOH

Applicant

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Before:

Hon Yeung Acting CJHC, Barma JA and McWalters JA in Court

Date of Judgment:

20 December 2018

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 16 July 2018 in HCAL 126/2018 refusing leave to the applicant to apply for judicial review.

2.Because of the applicant’s non-compliance with the direction for lodging skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 7 December 2018), the applicant was deemed to have waived her right to have an oral hearing, having been warned of this consequence by the court’s letter to her dated 31 August 2018 in which the direction had been notified to her. As such, this appeal is processed on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.The applicant is an Indonesian national. She came to Hong Kong to work as a domestic helper between 17 March 2011 to 3 November 2012. Upon the expiry of her working visa, she did not leave and overstayed since 18 November 2012. On 19 August 2013, she raised a non-refoulement claim. The claim was based on her fear of risk of harm in Indonesia because of a land dispute with her family members, but she subsequently added that she was at risk of harm or death from the family members because of her sexuality. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1562. We shall not repeat the same here.

4.On 26 November 2014, the Immigration Department served a Notice and a blank non-refoulement claim form (“NCF”) on the applicant and asked her to complete the NCF within 28 days. On 27 November 2014, a lawyer was assigned by the Duty Lawyer Service (“DLS”) to assist the applicant to fill in the NCF. On 13 January 2015, the DLS informed the Immigration Department that they had received no instructions from the applicant and that they therefore ceased to act for the applicant. As there was no completed NCF, on 15 January 2015 the Director considered the applicant had withdrawn her claim.

5.On 2 September 2015, the applicant through DLS requested the Director to reopen her claim. The applicant alleged that she had lost her mobile phone and due to her meagre means she could not contact the DLS. In a letter dated 22 September 2015, the Applicant further told the Director that she had provided a wrong address to the Director, and that she had not received the blank NCF or the withdrawal notification dated 16 January 2015.

6.On 19 October 2015, the Director refused to reopen the applicant’s claim.

7.On 30 October 2015, the applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 24 October 2017, the Board dismissed the appeal on 29 December 2017. The Board did not accept the applicant’s case that she was unable to contact DLS as she had been living in Hong Kong for more than 5 years and it was hard to believe that she had no ability to contact DLS. The Board further found that the applicant had in fact received a copy of the withdrawal notification when she reported to the Ma Tau Kok Report (Recognizance) Office on 26 January 2015 and she went to the DLS office on 29 January 2015 to seek assistance. It was thus implausible that the applicant would then fail to contact DLS for seven months until she went to the DLS again on 1 September 2015. Having considered the evidence as a whole, the Board found at [17] of the Board’s decision that the applicant failed to establish that due to circumstances beyond the applicant’s control, she had not been able to return the completed form so that the Director was justified, pursuant to section 37ZG(3) of the Immigration Ordinance (Cap 115), in refusing to re-open the claim. The adjudicator also considered that the applicant had failed to establish that the claim should be reopened pursuant to section 37ZE of the Ordinance.

The Judge’s decision

8.The intended application for judicial review was in respect of the decision of the Board. The Form 86 filed on 26 January 2018 did not contain any grounds for seeking relief. In the supporting affirmation, the applicant set out the following grounds for judicial review:

(1)   Failing to make sufficient and proper inquiry into the Country of Origin Information (“COI”).

(2)   Failing to take into account and put sufficient weight on the relevant COI; cherry picked and put weight on COI which was of little or no relevance to the applicant’s case.

(3)   Failing to evaluate and make a finding if a consistent pattern of gross, flagrant or mass violations of human rights existed in Indonesia.

(4)   Failing to assess if state protection exists in Indonesia.

(5)   Making irrational decision by taking into account irrelevant considerations and failed to take into account on facts and inferences that were favourable to the applicant.

(6)   Failing to call for psychological and psychiatric reports of the applicant.

(7)   Applying incorrect standard of proof in making decision.

(8)   There was a lack of legal representation.

9.On 16 July 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review. In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [25] – [36] for his refusal to grant leave:

“Discussion

25. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

26. 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’.[1]

27. The Applicant had stated a number of grounds for her application for leave for judicial review. The grounds were simply not to the point. The Director and the Adjudicator had not considered the Applicant's non-refoulement claim with respect to its merits. The Applicant failed to return a completed NCF to the Director within the time allowed by the Director. Her claim was thus deemed as having been withdrawn. When the Applicant later applied to reopen her claim, the Director considered she had not provided sufficient evidence to justify that she had not been able to return a completed NCF as required due to circumstances beyond her control. The Director refused to reopen the Applicant's claim. The Adjudicator endorsed the Director’s decision and dismissed the Applicant's appeal.

Submission of claim form

Section 37Y of the Immigration Ordinance Cap. 115 states:

(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b) –

(a)   within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b)   within any further period that an immigration officer allows under subsection (3).

(3) An immigration officer may –

(a)   on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it   would be unjust not to allow a further period for the claimant to return the completed form, allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4) The torture claim form is to be in a form specified by the Director.

Deemed withdrawal of claim on failure to return completed claim form

29. Section 37ZG of the Immigration Ordinance Cap. 115 states:

(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that—

(a)   the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

30.    The Applicant failed to return a completed claim form by the extended deadline of 14 January 2015. The Applicant's claim must then be treated as having been withdrawn according to s.37ZG(1) of Cap. 115. The Director duly issued a written notice of the deemed withdrawal. The Applicant got the notice on 26 January 2015 when she reported to the Director for recognizance.

31.    The Applicant could apply to the Director to reopen he claim. However, she must provide sufficient evidence in writing to satisfy the Director that it was due to circumstances beyond her control that she had not been able to return a completed claim form as required.

32.    The Applicant alleged she had lost her mobile phone. She had no money to buy a new phone or pay for mobile service. She called DLS a few times by paid public phone but mistakenly dialled the wrong number. She also said it would be too expensive for her to go to DLS frequently.

33.    Assuming the Applicant had really lost her mobile phone and she was of meagre means, there was still no reason for her to lose contact with DLS and to fail to return a completed claim form to the Director by the extended deadline of 14 January 2015. Such failure must be deemed as withdrawal of her claim according to s. 37ZG(1) of Cap. 115.

34.    The Applicant may apply to reopen her claim but she must provide sufficient evidence in writing to satisfy the Director that due to circumstances beyond her control she had not been able to return a completed claim form as required. The excuses given by the Applicant were not reasonable and therefore could not constitute circumstances beyond her control that made her unable to return a completed claim form as required. If the Applicant really got the DLS phone number wrong, she could go to the Immigration Department to ask for the right number for contact. Or simpler still, she could go to DLS early to give instruction to DLS to have the claim form completed and sent to the Director in time. Instead, she sat on the matter for much time. She went to DLS once in late January 2015, then failed to contact DLS for 7 months before she contacted DLS again only in September 2015.

35.    The Director deemed the Applicant’s claim as having been withdrawn. He later refused to reopen the Applicant's claim. The Adjudicator’s endorsed the Director's decision. I have reviewed the Director's decision and Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied their decisions were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

36.    The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.”

The appeal

10.The Notice of Appeal filed on 24 July 2018 did not contain any grounds of appeal. In the applicant’s supporting affirmation filed on the same day, she advanced the following grounds of appeal:

“The grounds of my application are as follows: -

The Honourable Deputy High Court Judge Josiah Lam was wrong in law in holding that there was no state acquiescence or involvement.

The Honourable Deputy High Court Judge Josiah Lam failed to provide detailed reason in support of her(sic) decision.”

11.Exhibit A annexed to the applicant’s supporting affirmation contained various grounds for judicial review against the Director and the Board which are the same as those advanced before the Judge.

Discussion

12.Ground 1 is entirely unrelated to the decision made by the Judge as appears from the CALL-1 Form. It is also unrelated to the decisions made by the Director and the Board. None of the Director, the Board or the Judge considered the applicant’s case in respect to its merits. The actual position was that the applicant failed to complete her NCF and her case was thus deemed to be withdrawn. The Judge had rightly confirmed the Board’s decision that the applicant had failed to provide sufficient evidence as required to justify her failure to return a completed NCF due to circumstances beyond her control. We agree with the Judge’s conclusion that the decisions of the Director and the Board were not Wednesbury unreasonable, and there were no errors of law nor procedural unfairness. Ground 1 is devoid of merit and is doomed to fail.

13.Ground 2 is a bare allegation. As it is apparent from the parts of the judgment set out in paragraph 9 above, this allegation is without merit. The Judge clearly explained the reasons for his decision in those paragraphs of the CALL-1 Form. We agree with the Judge that the applicant’s case was not reasonably arguable and leave to apply for judicial review should not be granted.

14.For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.