Hindun Mardiatul Ulum Saningwar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 960/2018

[2020] HKCFI 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 960 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 Bruno Chan:

1.   time be extended for the Applicant’s late Notice of Application for Leave to Apply for Judicial Review (“Form 86”); and

2.   leave be granted to the Applicant to apply for judicial review of the Torture Claims Appeal Board (“the Board”)’s decision dated 11 August 2017 on the grounds as stated in the Form Call-1.

It is further directed that:

3.   the Applicant shall within 14 days of the order herein file an originating summons, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.The Applicant is a 46-year-old national of Indonesia who last arrived in Hong Kong on 21 December 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 January 2010 which was subsequently extended to 21 December 2010, but it was terminated on 3 August 2010 after she was arrested by police for theft, for which she was convicted and sentenced to prison for eight months, and on 6 October 2010 she raised a torture claim with the Immigration Department, and after it was rejected, she then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or by her creditor for failing to repay her loans.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Sumberjati, Silo, Jember, East Java, Indonesia. After leaving school she first worked as a sewer, and in 1998 in order to help her family to pay off its many loans, in 1998 she started to work as a foreign domestic helper in Hong Kong.

3.In 2005 when she returned to Indonesia when she met her husband whom she later married in 2006, but soon she found her husband to be abusive towards her by frequently beating her with his belt over financial issues, and in order to avoid her husband the Applicant in 2008 returned to work as a foreign domestic helper in Hong Kong by borrowing several loans from a fellow foreign domestic helper to pay for her employment agent, with the loans repayable by monthly instalments with interest from her salaries.

4.However, in August 2010 she lost her employment after being arrested by police for theft for which she was subsequently convicted and sentenced to prison for eight months,and asa result she was unable to repay her loans for which she was threatened by her creditor that she would be killed upon her return to Indonesia, and also due to her fear of abuse by her husband, she therefore raised her torture claim and then a non-refoulement claim for protection, for which she completed a Supplementary Claim Form on 11 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.Whilst being released on recognizance pending the determination of her claim, the Applicant was arrested again on 25 April 2016 for possession of a false instrument and for undertaking unauthorized employment, for which she was convicted on 5 July 2016 and sentenced to prison for 15 months at the Lo Wu Correctional Institution.

6.By a Notice of Decision dated 25 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or her creditor to the Applicant upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that her problems with them were domestic or personal monetary disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or creditor to locate her.

8.Section 37ZS of the Ordinance provides that a claimant who wishes to appeal against the Director’s decision, the notice of appeal must be filed with the Torture Claims Appeal Board (“the Board”) within 14 days after notice of the decision is given to the claimant unless late filing of the appeal is allowed by the Board, and that the notice of appeal must be in a form specified by the Board and accompanied by a copy of the notice of decision being appealed against.

9.The Applicant, who was then still being imprisoned at Lo Wo Correctional Institution and was no longer legally represented, attempted to file her appeal to the Board in the following chronology as recorded in the Board’s subsequent decision of 11 August 2017:  

25 November 2016  :  The Director’s Decision was sent to the Applicant care of DLS.

12 December 2016  :  Last day for the Applicant to file her Notice of Appeal.

8 December 2016  :  The Applicant’s unsigned Notice of Appeal was posted to the Board.

6 January 2017  :  The Notice of Appeal was found to have been received by the Board.

6 January 2017  :  The Notice of Appeal was returned to the Applicant for her signature.

10 February 2017  :  Signed Notice of Appeal returned but without the Director’s Decision. 

16 February 2017  :  The Applicant was requested to provide a copy of Director’s Decision, 

10.It seems that the Applicant never provided a copy of the Director’s Decision to the Board as requested, for which the Board by its decision dated 11 August 2017 found that no valid Notice of Appeal had been filed by the Applicant, that her 2^nd Notice of Appeal was over nine weeks late which was a serious breach, and that there were no special circumstances which would make it unjust not to allow the late filing of the Applicant’s Notice of Appeal.

11.On 29 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she essentially relied on the ground that it was wrong and unfair for the Board not to allow the late filing of her Notice of Appeal in the circumstances of her case including the fact that she was then in prison with no longer any legal representation from DLS and that she was not educated and cannot read English, she therefore had great difficulties completing her Notice of Appeal within the required period. 

12.She was however by then also late with her Form 86, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review 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.

13.As the last day of the three-month period for her to file her Form 86 fell on 11 November 2017, the Applicant was therefore more than six months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of more than six months must be considered as very substantial or excessive, for which she explained in her supporting affirmation that upon receiving the Board’s decision, she on 25 August 2017 applied for legal aid for her intended application for judicial review, and when it was refused, she then immediately lodged her appeal which was only heard and concluded on 24 May 2018, and by then she was way out of time with her Form 86.

15.Whilst application for legal aid may not be accepted as good reason for serious non-compliance of the rules, given the fact that the Applicant did make her application quite soon after the Board’s Decision whilst she was still in prison, and with the discount of the 42-day period of the statutory legal aid stay of the proceedings which would bring the length of her delay down to less than five months, and while that would still be regarded as substantial, I propose to focus on the merit, if any, of her intended application to review the Board’s decision in refusing her late filing of her Notice of Appeal, of which the court will subject to an enhanced standard of rigorous examination and anxious scrutiny due to the seriousness of the issue at hand.

16.In its decision the Board first found the Applicant’s 2^ndNotice of Appeal invalid for not being accompanied by a copy of the Director’s Decision as specified by section 37ZS above, but it also referred to the fact that the Applicant had written several letters to the Board regarding its request for her to provide a copy of the decision [17], of which the Board however did not reveal what those letters were about, and if they contained the Applicant’s response or explanation or reason why she had not done so, but of which high standards of fairness would surely require that they be properly considered and addressed by the Board, and if they were not accepted as good reasons for its non-compliance, the Board should explain why, as after all, unlike personal information which must come from the Applicant herself, a copy of the Director’s Decision could be easily obtained from the Immigration Department if for whatever reason the Applicant was unable to do so from prison.  As such it is in my view reasonably arguable that in finding that the Applicant’s 2^nd Notice of Appeal invalid for not being accompanied by a copy of the Director’s Decision, the Board failed to take all the relevant circumstances into account and/or to give proper or sufficient reasons for its decision. 

17.As for late filing of notice of appeal, section 37ZT of the Ordinance provides that the Board must decide, as a preliminary decision without a hearing, whether to allow it by taking account of the reasons stated in the application and any accompanying documentary evidence, and any other relevant matters of fact within the knowledge of the Board, and if the Board is satisfied that by reason of special circumstances it would be unjust not to allow the late filing of the notice of appeal, the Board may allow such late filing by a written notice to the applicant.

18.In the present case, when the Board proceeded to consider the Applicant’s application for late filing and her reasons as disclosed in Section 5 of her Notice of Appeal by adopting the three-stage enquiry laid down by the English Court of Appeal in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122, it seems to me that in conducting the 3^rd stage of such enquiry, the adjudicator did not appear to have taken all the relevant circumstances of the case that he knew of, in particular the merits of the intended appeal, for which the Applicant in both her 1^st and 2^nd Notices of Appeal did set out the particulars of her grounds of appeal.

19.In Re Qasim Ali [2019] HKCA 430, the Court of Appeal held that the relevant circumstances which the Board is required to take account of in deciding whether it would be unjust not to allow the late filing of the notice of appeal must include the merits of the appeal, as Lisa Wong J stated in the judgment for the court:

“ 24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be ‘unjust’ not to do so by reason of ‘special circumstances’: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the Judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance,taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor.  See Re Khan Kamal Ahmed, CACV 563/2018, [2019] HKCA 377, 2 April 2019.”

20.In its decision the adjudicator conducted the 3^rd stage of the Begum enquiry as follows:

“ 27. I move on to the third stage. Prescription of 14 days in the Ordinance and prescription of 14 days in the Petition Guide are meant to be observed. It is common knowledge, and certainly within my knowledge as a Member of the Board and an Adjudicator, that there are many many Appeal/Petition cases pending before the Board/Adjudicator. It goes without saying that Appeal/Petition cases under the Unified Screening Mechanism have to be dealt with efficiently and at proportionate cost. Serious or significant late filing of Notice of A-P inevitably results in delay and wastage of costs funded by taxpayers’ money. It affects the efficient running of the United Screening Mechanism.

28.     I have considered the A-P’s statement of reasons, and all relevant matters of facts within my knowledge, I am satisfied that there is no special circumstances which would make it unjust not to allow late filing of the Notice of A-P.  I therefore refuse the application for late filing, and do not allow the late filing of the Notice of A-P.”      

21.As noted above, as the Applicant had provided particulars of her grounds of appeal in Section 2 of both her 1^st and 2^nd Notices of Appeal, which were therefore matters of fact within the knowledge of the Board under section 37ZT(2)(b) of the Ordinance, and accordingly it is in my view reasonably arguable that the adjudicator had failed to take account of such relevant matters and/or the merits of the intended appeal in the exercise of his discretion not to allow the late filing of the Applicant’s Notice of Appeal.

22.I should note that the Director has recently informed the court that the Applicant had been removed from Hong Kong on 22 August 2018 despite the fact that these proceedings had already been commenced and were still on-going at that time, and without commenting further at this stage on the Director’s current policy, as I understand, that under such circumstances that the removal of illegal immigrants, of which the Applicant was one, will normally be suspended pending the determination of the proceedings, but given that the Applicant would still be entitled to her right of access to the court notwithstanding her removal, I shall proceed to make the necessary decision and order regarding her leave application accordingly: see PA v Director of Immigration [2019] HKCFI 2019, HCAL 1668/2018, 15 August 2019.

23.In the premises and for the reasons given, I extend time for the Applicant’s late Form 86, and grant leave to her to apply for judicial review of the Board’s decision on the grounds as stated above, and direct that she shall file an originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 17^th day of March 2020.

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