Usman Yumiati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 285/2018

[2020] HKCFI 1932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 285 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant first entered Hong Kong as a foreign domestic helper (“FDH”) in 2004.  Her last contract of employment ended on 19 September 2013 and she was granted a visa until 14 November 2013, but thereafter she overstayed.  The applicant submitted a non‑refoulement (“NRF”) claim by way of written representation on 4 April 2014 and surrendered on 26 May 2014, to the Immigration Department.  She was released upon recognisance on the same day.  She submitted two further NRF claims by way of written representation on 4 and 20 June 2014.  Her NRF claim form was submitted on 16 March 2017.

2.The applicant attended a screening interview on 12 April 2017.  The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision on 18 April 2017.  She appealed the decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Susan Marie Pinto (“the Adjudicator”), heard her on 7 September 2017 and considered her appeal on all applicable grounds.  The Adjudicator refused her appeal on 27 September 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 22 February 2018, which was out of time.  Five months later she sought legal aid on 24 July 2018, which was refused on 17 September 2018.  She did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is an Indonesian national.  She was born in Central Java on 4 July 1979.  She was a Christian.  She was married in Indonesia in approximately 2011, but does not have a copy of the certificate of marriage.  Her husband “Adil” was a Muslim.  She says she converted to Islam after her marriage but now states that she is once more a Christian.  Shortly (very shortly) after the marriage, the applicant discovered that Adil was already married with three children; they argued and she left after just three days.  She took a further contract of employment as an FDH in Hong Kong and once she was in Hong Kong, she asked her husband for a divorce, which he refused.  She considered herself separated from her husband but is not sure if she is divorced as she has not returned to Indonesia since 2011.  She has one son, Goradosh, who was born in Hong Kong on 15 October 2014, to a man she had a relationship with in Hong Kong.  He is Chinese and her son has Hong Kong citizenship.  The new man is also married with a child in Mainland China.  When the applicant fell pregnant she informed her husband who was furious that she had brought shame upon him.  This was the only time that he threatened her.  After the birth of her son, the relationship with his father came to an end and the applicant decided to remain in Hong Kong as she had no relatives or friends in Indonesia.  She fears discrimination for having a mixed race baby out of wedlock.

Form 86 out of time

5.In accordance with Order 53, rule 3, the applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 22 February 2018.  Under Order 53, rule 4 an application for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose.  Where the relief sought is a review of a case tried in a lower court, the relevant date from which time runs is the date of that decision.  In this case time ran from 27 September 2017 and expired on 27 December 2017.

6.It is incumbent upon the applicant to provide good reason for extending time.  The applicant has submitted no explanation for her delay and has not sought leave for an extension of time.  I have nevertheless considered the principles^[1] applicable to granting such an extension if an application had been made and those are:

1)     the length of delay;

2)     the reasons for delay;

3)     the prospects of success in the intended appeal; and

4)     the prejudice to the putative respondent and administration of justice if extension of time were granted.

7.In this case, the applicant was late by a month and 26 days and has not offered any explanation for this delay.  Nor for that matter has she explained why it took a further five months to apply for legal aid.  In view of the absence of good reason (or indeed any reason) for the delay in filing her Form 86, she must satisfy the court that there is a reasonable prospect of success in her intended leave application and that there will be no prejudice to the putative respondent or administration of justice if an extension of time were to be granted.  As to the latter, there is no suggestion there would be any such prejudice, save that it is in the interest of justice for matters subject to judicial review to be dealt with expeditiously.  This application therefore turns upon the likelihood of success of her application for judicial review.

8.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with.  It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator.  The applicant must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with her application in order to obtain an extension of time to seek leave to judicially review that Decision.

9.All of the papers considered by the Director, were before the Adjudicator.  She arranged for an oral hearing and went to some lengths to consider the position of mother and child if refouled back to Indonesia given her son’s illegitimacy.  This was the most obvious area of concern rather than the unfounded claim that her husband would find her and kill her if she returned.  In fact, after some discussion, the Adjudicator found that the overwhelming concern of the applicant was simply to have her son remain in Hong Kong.  She satisfied herself that the applicant could avail herself of a number of services for people in their position and that the likelihood of harm to either of them was low.  There was no suggestion within the materials that they would be refused such assistance.  As for any harm from her husband, this too was speculative in nature.  Her ex‑boyfriend was currently providing for them financially and would continue to do so if she was returned to her home country.

10.In the absence of any reason for the delay and any grounds of review, the court is left with the bare facts as relied upon by the applicant and the application of the law to those facts by the Adjudicator, along with the explanation given by her within the Decision.  Having analysed that Decision, the applicant’s NRF claim is extremely weak and was rejected on that basis after due process.  There is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted an extension of time to apply for leave to judicially review that Decision.

11.This application is refused.

Dated the 7^th day of August 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