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

HCAL 1044/2017

[2020] HKCFI 1929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1044 OF 2017

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 Applicants:

Procedural history

1.The 1^st applicant had originally been employed as a foreign domestic helper in Hong Kong from 1999 to 2007.  Thereafter, she left but returned to Hong Kong lawfully on 2 January 2008 and thereafter overstayed.  On 3 June 2015, the 1^st applicant was prosecuted for breach of condition of stay and was sentenced to five months’ imprisonment despite the fact that she had recently given birth to the 2^nd applicant on 10 March 2015.  On discharge from prison on 12 September 2015, they were transferred to Castle Peak Bay Immigration Centre.  The 1^st applicant submitted a non-refoulement claim by way of written representation on 22 January 2015 and a further claim on behalf of her son on 9 November 2015.  They were released upon recognisance on 12 September 2015.  Their non-refoulement claim forms were submitted on 19 January 2016.

2.The 1^st applicant attended a screening interview on 8 March 2016.  The Director of Immigration (“the Director”) dismissed their claims (not including that under BOR 2) by Notice of Decision (“the Decision”) on 8 April 2016 and by Notice of Further Decision (re BOR 2) on 6 January 2017.  They petitioned/appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The adjudicator of the TCAB, Ms Kay Ransome (“the Adjudicator”), heard them on 18 January 2017.  The Adjudicator considered their appeal on all applicable grounds including BOR 2 and refused their appeal on 4 May 2017.

3.The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicants are Indonesian nationals.  The 1^st applicant was born on 5 September 1978 and was raised in Malang.  She was married in Indonesia in 1996 and has a son from that union, who was born in 1998.  She came to Hong Kong to work as a foreign domestic helper in 1999 and entered into an extra marital relationship in 2003.  The 2^nd applicant was born in Hong Kong on 10 March 2015, from that relationship.  The 1^st applicant has ceased to have contact with her husband and wishes to divorce him, which he has refused.  She has also ceased to have contact with the 2^nd applicant’s father and does not know his whereabouts.  The applicants’ claims are threefold.  Firstly, she fears harm from loan sharks because of the indebtedness of the 1^st applicant’s parents.  Secondly, they fear reprisal, to both herself and her son, from her husband if she returns to Indonesia.  Thirdly, they fear ostracism by the Muslim community and her parents because she has a child born out of wedlock and he is illegitimate.

Form 86 out of time

5.In accordance with Order 53, rule 3, the applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review.  This was dated 8 December 2017.  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 4 May 2017 and expired on 4 August 2017.

6.It is incumbent upon the applicants to provide good reason for extending time.  The applicants have submitted no explanation for their delay and have 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 applicants were late by over four months and have not offered any explanation for this delay.  In view of the absence of good reason (or indeed any reason) for their delay, they must satisfy the court that there is a reasonable prospect of success in their 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.  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 in their application for judicial review.

8.Judicial review is not a rehearing of the merits of the applicants’ original application for refugee status.  As the applicants have 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 claimants and dealt with.  It can therefore only be an application to apply for leave to judicially review the Decision of the Adjudicator. The applicants must therefore show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with their 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.  She satisfied herself that the applicants could avail themselves 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 the issue of the loan sharks, it was clear that the parents had other family members to rely upon and that they had purposefully had nothing to do with the applicants since they received news of her pregnancy in 2015.  Her father had since died and the 1^st applicant had no up‑to‑date knowledge of the financial circumstances of her mother and the remainder of her family.  As for any harm from her husband, this too was speculative in nature.

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 applicants and the application of the law to those facts by the Adjudicator along with the explanation given by her in the Decision.  Having analysed that Decision, there is no reasonably arguable basis upon which the applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave.

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