Tri-astuti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 597/2018 on BabelCite. This High Court CFI judgment was delivered on 30 April 2019.
1. The Applicant is a national of Indonesia. She is now aged 44 (DOB: 7 November 1974).
Cited by 2 cases · Cites 5 cases
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HCAL 597/2018 [2019] HKCFI 978 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 597 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review 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 44 (DOB: 7 November 1974). 2.The Applicant claimed she would be harmed or killed by her ex-husband and some debt collectors. 3.Between 2000-2002, the Applicant worked in Hong Kong as domestic helper. 4.In 2002, the Applicant married her husband in Indonesia. They had a daughter in 2003. The Applicant's husband relied on the Applicant’s family for support. He had borrowed money from others. In 2003, some debt collectors came to demand payment. The Applicant's father repaid for his son-in-law. 5.The Applicant was often beaten by her husband. To escape from such violence, she came to Hong Kong to work as domestic helper again in 2003. She later returned to Indonesia. 6.The Applicant came to Hong Kong again in 2006 to work as domestic helper. 7.In late 2009, the Applicant returned to Indonesia and found out her husband had married another woman. Some debt collectors came to ask the Applicant to repay her husband’s debt. They threatened her. The Applicant tried to speak to her husband. The latter assaulted her. 8.The Applicant returned to Hong Kong on 13 December 2009. When her employment contract ended, she went back to Indonesia on 22 September 2010. Her husband and the debt collectors harassed her. The Applicant returned to Hong Kong on 15 October 2010. 9.The Applicant went back to Indonesia on 7 February 2011 to sort things out with her husband. The debt collectors came for her and her husband threatened to kill her if she would not make repayment for him. 10.The Applicant returned to Hong Kong on 15 February 2011. She returned to Indonesia in July 2011 when that employment contract came to an end. 11.The Applicant was assaulted by her husband. He even tried to strangle her. The debt collectors also threatened to kill the Applicant if she did not repay for her husband. 12.The Applicant left home. She left Indonesia and last entered Hong Kong on 17 January 2012 to work as domestic helper. On 8 February 2013, her employment contract was prematurely terminated. The Applicant did not leave the territory accordingly. She began to overstay from 23 February 2013. The Applicant was arrested by the police on 19 March 2013. She raised a non-refoulement claim on 6 April 2014. 13.The Applicant learnt the debt collectors continued to look for her. Her husband said the debt collectors would kill her. [The Applicant last contacted her husband in March 2013.] 14.The Applicant had never sought assistance from the Indonesian police. She said the police would not intervene in private money disputes. 15.The Applicant had not divorced her husband but she married a Pakistani man in Hong Kong. 16.The Applicant also claimed she had got cancer since 2015. 17.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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 18.On 10 April 2018, the Applicant applied for leave for judicial review. Timeline 19.Things happened in this order: –
Respondents 20.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. 21.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. 22.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 judicial review of the Director's decisions. Therefore, I shall deal with the current application in relation to the Board's decision only. The Director's decision 23.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. The Director refused the Applicant's claim with respect to all the four applicable grounds. The Board's decision 24.The Applicant appealed to the Board. The Adjudicator interviewed her on 11 October 2017. 25.The Adjudicator did not reject the Applicant's allegations. However, even on the Applicant's account of events the Adjudicator found there was no state instigation. The complained situation was only related to private loan dispute and domestic violence. It was not on account of any Convention reason (race, religion, nationality, membership of a particular social group or political opinion). The Applicant had not reported her case to the Indonesian authorities. 26.The Adjudicator considered the debt collectors had not inflicted serious harm on the Applicant and many years had passed since then. 27.As to domestic violence, the Adjudicator found the Applicant had not been severely hurt by her husband. After all, the couple’s relationship actually ended in January 2012. The husband was estranged from the Applicant and her family. He had agreed to the Applicant's suggestion of divorce. 28.The Adjudicator considered relevant country-of-origin information ("COI"). He found reasonable state protection was available to the Applicant but she had not sought help from the authorities. The Adjudicator also found internal relocation was viable. 29.The Adjudicator did not accept the Applicant faced any real risk that warranted non-refoulement protection. On 1 December 2017, he refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. Grounds of judicial review 30.In her affirmation, the Applicant said she did not understand the Board's decision due to her English deficiency. She repeated her problems and said her husband would still hunt her down. The Indonesian authorities would not intervene in her situation and it was impracticable for her Pakistani partner in Hong Kong to go with her to Indonesia to protect her. Court hearing 31.The hearing took place on 12 September 2018. The Applicant was present. An Indonesian interpreter provided service in court. 32.The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of her application were in the documents. 33.The Board's decision was dated 1 December 2017. The Applicant admitted she received the Board's decision around that date. She only filed the current application four odd months later on 10 April 2018, so she was late for more than a month. The Applicant said she had been suffering from cancer since 2015. She was hospitalized at times but she could not tell when. She also said she had to take medication and had to go to the hospital for consultation once every 4 weeks. Discussion 34.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 35.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: –
Late application for leave for judicial review 36.Order 53 Rule 3(1) of the Rules of the High Court reads: –
37.Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –
38.It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason 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 that there is 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] 39.In the present case, the Board’s decision was issued on 1 December 2017. The Applicant only applied for leave for judicial review four odd months later on 10 April 2018. Excluding the 3-month grace period for filing, she was one odd months late. 40.The Applicant said she had suffered from cancer since 2015 and was hospitalized at times. However, she admitted she received the Board's decision around 1 December 2017. She failed to prove she was in hospital between 1 December 2017 and 10 April 2018, when she filed the current application. The Applicant failed to explain for her delay in applying for leave for judicial review. 41.There was no good reason from the Applicant to justify her delay, which was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all. 42.The Applicant complained she did not understand the Board's decision due to her English deficiency. 43.In the current application, a friend helped the Applicant to prepare Form 86 and her affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated her language problem. 44.The Applicant repeated her problems and said her husband would still hunt her down. The Adjudicator had considered her complaints. He found the couple’s relationship ended in January 2012. The husband was estranged from the Applicant and her family. He had also agreed to the Applicant's suggestion of divorce. 45.The Applicant complained the Indonesian authorities would not intervene in her situation. However, she had never reported her case to the authorities. The Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant. Thus, while it might be impracticable for the Applicant's Pakistani partner in Hong Kong to go with her to Indonesia to protect her, the Applicant would still be safe in her country. 46.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. The Adjudicator 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 of the case. He considered the Applicant’s claim 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 current application for leave for judicial review is late. The Applicant fails to show any good reason for her delay. There are no circumstances that oblige the court to consider her late application. I therefore dismiss her application for leave for judicial review. Dated the 30th day of April 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 [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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 110/2016 Kwok Cheuk Kin, para 17. [9] Ibid., para 19. |
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