Wartini v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL563/2018

[2019] HKCFI 28

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 563 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)

Following:

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

Order by Deputy High Court Judge Josiah Lam:

(1)   Extension of time for application for leave to apply for judicial review of the decisions of Torture Claims Appeal Board dated 9 May 2017 and 27 July 2017 be refused; and

(2)   Leave to apply for judicial review be dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of no more than 5 pages in support of the application for leave to appeal;

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5)   Liberty to apply.

Observations for the Applicant

Background

1.The Applicant is a national of Indonesia. She is now aged 43 (DOB: 7 August 1975).

2.The Applicant claimed she would be harmed or killed by her creditor in Indonesia.

3.The Applicant said she had borrowed a large sum of money (equivalent to around HK$55,000) from a creditor to support her children’s education. She could not repay the creditor.

4.Between 2005 and 2013, the Applicant worked intermittently as domestic helper in Hong Kong. She first came to Hong Kong on 24 January 2005 and last entered Hong Kong on 13 December 2011.

5.In early 2013, the Applicant while in Hong Kong learned her creditor had sent two men to her father’s home in Indonesia to demand repayment. They threatened her father but did not hurt him.

6.On the same day, the two men approached the Applicant’s mother. They asked her to sign an agreement to give up her house if the Applicant could not repay the loan. The mother refused to sign. The men then left.

7.In Hong Kong, the Applicant received a phone call from her creditor. The creditor threatened to kill her if she could not repay the loan. The Applicant was scared. She later received more threatening phone calls and SMS texts.

8.The Applicant only got threats. She was not injured at any time. She did not seek assistance from the Indonesia authorities because she was in Hong Kong.

9.The Applicant was arrested by the police in Hong Kong for theft on 26 March 2013. On the same day, her employment contract was terminated.

10.The Applicant was sentenced later to 12 months’ imprisonment. She raised a non-refoulement claim in prison on 1 August 2013. She was released on 23 November 2013.

11.The Applicant said she dared not return to Indonesia because her life would be endangered. She did not believe the Indonesia police would help her since they were corrupt.

12.The Applicant said she had no means to relocate herself to other parts of Indonesia.

13.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[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].

14.On 6 April 2018, the Applicant applied for leave for judicial review.

Timeline

15.Things happened in this order: –

2005-1-24	The Applicant first entered Hong Kong to work as domestic helper.
2011-12-13	The Applicant last entered Hong Kong to work as domestic helper.
2013-3-26	The Applicant was arrested by the police for theft. Her employment contract was prematurely terminated on the same day. She was later sentenced to 12 months’ imprisonment.
2013-8-1	The Applicant raised a non-refoulement claim in prison. She was released on 23 November 2013.
2015-2-16	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”]
2015-3-2	The Applicant appealed to the Board against the Director's decision.
2016-7-11 – 2017-5-8	The Applicant made more representations to the Director.
2017-5-9	The Board refused the Applicant’s appeal against the Director's decision. [“the Board’s decision”]
2017-5-16	The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”]
2017-5-19	The Applicant appealed to the Board against the Director's further decision.
2017-7-27	The Board refused the Applicant’s appeal against the Director's further decision. [“the Board’s further decision”]
2018-4-6	The Applicant applied for leave for judicial review.

Respondents

16.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.

17.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.

18.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 decisions. Therefore, I shall deal with her application only in relation to the Board's decisions.

The Director's decision

19.In his decision dated 16 February 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.

20.On 16 May 2017, the Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.

The Board's decision

21.The Applicant appealed to the Board against the Director's decision and the Director's further decision. The Adjudicator considered it was unnecessary to interview the Applicant with respect to all the four applicable grounds.

22.The Adjudicator found that even on the Applicant’s account of events, the complained situation was only related to a private loan. It was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Applicant was only threatened by the creditor. She had not been inflicted with ill-treatment (physical or mental) to a minimum level of severity. The Adjudicator found the Applicant's feared harm did not qualify as torture risk, persecution risk or BOR3 risk. On 9 May 2017, he refused the Applicant’s appeal with respect to those three applicable grounds.

23.In his further decision dated 27 July 2017, the Adjudicator noted the Applicant had made more representations after the Director's decision. However, the information was no different from what she had previously raised with the Director. The Adjudicator considered the Applicant’s complained situation did not amount to BOR2 risk. He refused the Applicant’s appeal with respect to the last applicable ground: BOR2 risk.

Grounds of judicial review

24.In her affirmation, the Applicant complained against the Director and the Adjudicator. As said in paragraph 18 above, I would deal with the current application for leave for judicial review in relation to the Board's decisions only.

25.The Applicant complained the Adjudicator did not give her opportunity to present her case in an oral hearing. She also said the Adjudicator failed to consider the issue of state protection; failed to conduct sufficient inquiry of relevant country-of-origin information ("COI"). The Applicant said the Adjudicator did not have sufficient reason to find she would not face harm in Indonesia.

Court hearing

26.The hearing took place on 17 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.

27.The Applicant confirmed all the grounds of judicial review were in her affirmation. She had nothing to add to those grounds.

28.The Applicant also confirmed she had submitted all of her case to the Immigration Department.

29.The Board's decision and the Board's further decision were respectively dated 9 May 2017 and 27 July 2017. The Applicant only applied for leave for judicial review on 6 April 2018. She was late in seeking leave for judicial review in relation to the Board's decision and the Board’s further decision.

30.The Applicant said in her affirmation that she did not know how to apply for judicial review. She only knew she had to take action when the Immigration Department said she had to go back to Indonesia. The Applicant also said she lacked money.

31.In court, the Applicant admitted she did receive the Board's decision and the Board’s further decision. She said she could not read English. She brought all the notices to a friend for language assistance. The Applicant said she was aware of the results but not the details of the decisions. In January 2018, she was informed by the Immigration Department that she had to go back to Indonesia. She then went to find a lawyer for assistance. The lawyer helped her to prepare Form 86 and the affirmation. The Applicant said she did not know why her lawyer filed the current application for leave for judicial review only on 6 April 2018.

Discussion

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

33.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’.[6]  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.” [7]

Late application for leave for judicial review

34.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.

35.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.

36.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 give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8]  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.[9]

37.In the present case, the Board’s decision and the Board's further decision were issued on 9 May 2017 and 27 July 2017 respectively. The Applicant only applied for leave for judicial review on 6 April 2018. Excluding the 3-month grace period for filing, she was still 7 odd months late with respect to the Board's decision and 5 odd months late regarding the Board's further decision.

38.The Applicant admitted she received the Board's decision and the Board’s further decision in May 2017 and July 2017 respectively. She could not read English and brought all the notices to a friend for language assistance. She was aware of the results but not the details of the decisions. The Applicant only thought of taking action when the Immigration Department told her in January 2018 that she had to go back to Indonesia. She said she did not know how to apply for judicial review and lacked money. She finally found a lawyer for assistance in January 2018. The lawyer helped her to prepare Form 86 and the affirmation. The Applicant said she did not know why her lawyer filed the current application only on 6 April 2018.

39.What the Applicant had put forward could not afford a good reason for the delay regarding either the Board's decision or the Board's further decision. The respective delays of 7 odd months and 5 odd months were undue and substantial. The prejudice that would be caused to the putative respondents would not be insignificant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issues of general importance. The Applicant's argument also had no merits (see below).

40.The Applicant complained the Adjudicator did not give her opportunity to present her case in an oral hearing.

41.There was no absolute right to an oral hearing; the matter was left to the discretion of the Adjudicator. In ST v Betty Kwan & Another, the Court of Appeal says: –

“…it does not follow from the requirement of an opportunity to make worthwhile or effective representations that there must be an oral hearing held before a decision is made. Put another way, there is no absolute right to an oral hearing. Among other things, the question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.” [10]

42.The same court further states: –

“The judge then, importantly, pointed out the question of whether an oral hearing should be held is not to be decided by whether there are factual disputes, but whether an oral hearing “may well contribute to achieving a just decision” [11]

43.The Applicant confirmed she had submitted all of her case to the Immigration Department. The Adjudicator was prepared to accept the facts claimed by her. He understood the Applicant's case and did not feel it was necessary to hold an oral hearing to clarify anything. The Applicant failed to prove she had “worthwhile or effective representations” to make before the Adjudicator. The Adjudicator was entitled to consider the Applicant’s claim with respect to all the four applicable grounds without holding any oral hearing in the circumstance.

44.The Applicant said the Adjudicator did not have sufficient reason to find she would not face harm in Indonesia. I disagree. The Adjudicator's findings were clear. He concluded that even on the face value of the Applicant’s description, her complained situation did not qualify as torture risk, persecution risk, BOR2 risk or BOR3 risk. The Adjudicator's conclusion was not Wednesbury unreasonable.

45.In light of his finding that the Applicant faced no risk, the Adjudicator need not consider any country-of-origin information ("COI") for the issues of state protection and internal relocation.

46.I have reviewed the Adjudicator’s decisions 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. 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

47.The Applicant's application for leave for judicial review is late in relation to the Board's decision and the Board's further decision. She fails to show any good reason for her lateness. There are no justified circumstances that oblige the court to consider her late application. I therefore dismiss the application.

Dated 8^th day of January 2019

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