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

HCAL 1051/2017

[2020] HKCFI 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1051 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 entered Hong Kong lawfully as a Foreign Domestic Helper (“FDH”) on 20 August 2008 but did not depart after the termination of her FDH contract on 21 October 2009.  She surrendered to the Immigration Department on 1 February 2011. On 3 March 2011, she was sentenced to two months’ imprisonment suspended for three years for overstaying.  The 1^st applicant submitted a torture claim on 25 March 2011, which was withdrawn on 24 August 2011.  Thereafter, she submitted a non-refoulement (“NRF”) claim by way of written representation on 21 March 2014.  A supplementary claim form was submitted in respect of that claim on 12 August 2015 and on 15 September 2015, she submitted a NRF claim form in respect of the torture claim as her case was to be considered under all three heads of claim i.e. torture, persecution and BOR 3.  The 2^nd applicant was born on 31 May 2011 and his NRF claim by way of written representation was submitted on 30 June 2014.  The NRF claim form for the 2^nd applicant was submitted on 12 August 2015.

2.The 1^st applicant attended a screening interview on 30 October 2015, on behalf of herself and her son. The Director of Immigration (“the Director”) dismissed their claims (not including that under BOR 2) by Notice of Decision (“the Decision”) on 11 November 2015 and by Notice of Further Decision (re BOR 2) on 31 October 2016.  They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard them on 23 November 2016.  He considered their appeal on all applicable grounds including BOR 2.  The Adjudicator refused their appeal on 20 February 2017.

3.The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 11 December 2017, which is out of time.  In order to pursue their claim for judicial review they require leave to extend time for applying for leave.  The applicants 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, born on 20 October 1977, is married to a man in Indonesia but since coming to Hong Kong has given birth to a child on 31 May 2011, who was fathered by a different man and is now refusing to send any money home to her husband in Indonesia.  She fears she will be harmed or killed by her husband if she were to be returned to Indonesia as the marriage had been abusive before she left Indonesia to take up her FDH contract in Hong Kong.

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 11 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 20 February 2017 and expired on 20 May 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 6 months and 21 days and have not offered any explanation for this delay save to say that they were not informed they could seek judicial review.  They were in fact informed in the usual way and to the address at which they were registered.  They have provided no explanation why they either did not receive notice or why they did not understand the notice which they received.  They have not suggested they have moved address and if they had done so, they had a duty to inform the Director of such a move.  The onus is upon them to do so.  In view of the absence of good 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 to the putative respondent 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.All of the papers considered by the Director, were before the Adjudicator.  He 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.  He satisfied himself 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.  He did not accept that the applicants could not re-locate.

9.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 him 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.

10.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