Siti Maesaroh Sukari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 611/2018 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 42 (DOB: 15 July 1976).
Cited by 1 case · Cites 5 cases
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HCAL611/2018 [2019] HKCFI 979 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 611 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 42 (DOB: 15 July 1976). 2.The Applicant claimed she would be harmed or killed by her husband Puji. 3.The Applicant said she married Puji when she was 19 years old. They had two children. 4.The Applicant came to Hong Kong to work as domestic helper in 2003. She remitted all her earnings to her husband. In July 2006, the Applicant returned to Indonesia. She found out her husband had been addicted to gambling and drinking. He spent much of the money in the Applicant’s account. There was argument between the couple. Puji was violent to the Applicant. On one occasion, he tried to slash her with a knife. The Applicant was injured in her right hand. However, she did not report Puji to the police. 5.The Applicant returned to Hong Kong in August 2006. Puji constantly asked her for money. 6.The Applicant went back to Indonesia again in September 2008. Puji behaved in the same way. The Applicant feared Puji but she did not report him to the police. 7.The Applicant came back to Hong Kong in October 2008. She stopped contacting Puji but the latter would demand money from her parents. 8.In December 2010, the Applicant returned to Indonesia. She found out Puji had borrowed a lot of money from a loan shark. She did not make repayment for Puji. Puji was angry and attacked her. He often asked the Applicant for money and assaulted her. 9.The Applicant finally asked for a divorce. One evening, Puji poured kerosene on the Applicant and threatened to burn her alive. The Applicant managed to escape. She returned to Hong Kong in January 2011. 10.The Applicant’s parents reported Puji to the police but the police said the Applicant must come to lodge the complaint herself. The Applicant was afraid. She would not go to the police. She stayed in Hong Kong when her last employment contract here was terminated prematurely on 23 March 2011. 11.The Applicant had not seen Puji again. Puji still demanded money from the Applicant through their son. He threatened the Applicant’s parents that he would kill the Applicant when she came back. 12.The Applicant overstayed in Hong Kong and raised a torture claim[1] in May 2011. She withdrew that claim in November 2012 after her parents had told her Puji had quit gambling and drinking. However, the Applicant soon learnt that was not the case. She also heard from her parents that Puji often carried a sharp knife with him. 13.The Applicant did not renew her torture claim but raised a non-refoulement claim in September 2014. 14.The Applicant said the Indonesian authorities would only help people with money or connection. She had not reported Puji to the police. She did not want him to be imprisoned for the sake of her children. 15.The Applicant said it was difficult for her to relocate to other parts of Indonesia. She also feared Puji could find her. 16.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 the remaining three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4]. [The Applicant had withdrawn her torture claim in 2012.] 17.On 11 April 2018, the Applicant applied for leave for judicial review. Timeline 18.Things happened in this order: –
Respondent/Interested party 19.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. 20.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] 21.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party. The Director's decision 22.The Applicant had withdrawn her torture claim in 2012. The Director refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Board's decision 23.The Applicant appealed to the Board. The Adjudicator interviewed her on 12 September 2017. 24.The Adjudicator did not reject the Applicant's account of events. However, he found the Applicant had not been inflicted with severe suffering. He was not satisfied Puji really meant to seriously harm or kill the Applicant. The Adjudicator did not accept the Applicant faced any real risk that warranted non-refoulement protection. He also found internal relocation was viable in the Applicant’s case. 25.On 22 September 2017, the Adjudicator refused the Applicant's appeal with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. Grounds of judicial review 26.The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant. 27.The Applicant complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. She said she was confused. The Applicant accused the Board did not make appropriate arrangement for her in relation to the hearing bundle. 28.The Applicant also complained the Board relied on outdated cases, information not officially recognized or simply hearsay. Court hearing 29.The hearing took place on 10 September 2018. The Applicant was in person. An Indonesian interpreter provided service in court. 30.The Applicant said a lawyer helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. 31.The Applicant confirmed she had submitted all to the Director and the Adjudicator for their consideration of her non-refoulement claim. 32.The Applicant was late in filing the current application for leave for judicial review. She said she received the Board's decision around 22 September 2017 but she did not know she had to make the application within three months. Discussion 33.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 34.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 35.Order 53 Rule 3(1) of the Rules of the High Court reads: –
36.Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –
37.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 any 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] 38.In the present case, the Board’s decision was issued on 22 September 2017. The Applicant only applied for leave for judicial review six odd months later on 11 April 2018. Excluding the 3-month grace period for filing, she was about three and a half months late. 39.The Applicant said she received the Board's decision around 22 September 2017 but she did not know she had to make the application within three months. That was not a good reason to explain for her delay. 40.The Applicant's delay 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. 41.The Applicant complained she received the appeal bundle only on 5 September 2017, a few days before the appeal hearing scheduled for 12 September 2017. 42.According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. 43.The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the appeal hearing. The rules had not been breached. 44.The Applicant mentioned she was not legally represented then. She had been represented by the Duty Lawyer Service up to the Director’s decision dated 27 July 2016. 45.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.[12] The Applicant failed to show how her case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. 46.The Applicant admitted she had a lawyer to prepare Form 86 and the affirmation for her. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem. 47.The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim by the immigration officer. There was no evidence to show the appeal bundle was difficult or voluminous. 48.A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. There is no evidence that she had so complained to the Adjudicator or asked for adjournment during the appeal hearing. 49.The Applicant said she answered all the questions in the Board hearing honestly.[13] That means she knew what was asked and how to answer then. She was not confused. 50.There was no evidence the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay. 51.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. He considered the Applicant’s claim carefully and applied the law correctly. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 52.The current application for leave for judicial review is late. The Applicant fails to show any good reason to justify 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. [10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong. [11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme. [12] CACV 284/2017 Re Paswan Shibu Lal, para 21. [13] The Applicant's affirmation, Point 8 on Page 4. |
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