Erni Apriana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 1739/2018[2020] HKCFI 1901

Court

High Court CFI

Date10 Aug 2020

Judge—

Case Document

100%Judiciary

HCAL 1739/2018

[2020] HKCFI 1901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1739 of 2018

BETWEEN

	Erni Apriana	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Interested Party

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

Following;

	consideration of documents only; or
	consideration of documents and oral submission by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be granted.

Observations for the Applicant:

THE APPLICATION

1.The applicants jointly apply for leave to apply for judicial review of the Decisions respectively dated 21 April 2017 and 6 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

2.The applicants are mother and son. However, the son did not go through the Uniform Screening Mechanism. Nor was he named as a party before the Board in the first applicant’s appeal. In the circumstances, the second applicant cannot apply for leave for judicial review. His application should not be entertained. His name is deleted from Form 86.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the second applicant as party, adding the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) as proposed respondent and adding the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper in September 2012. Her employment contracted was terminated on 11 May 2014. She was arrested for an offence of “Endeavouring to conceal birth”, for which she was charged, convicted and sentenced. She lodged her non-refoulement claim on 13 June 2014. She claimed that, if refouled, she would be harmed or killed by her ex-husband. She was also in fear that her stepmother would treat her badly and that her family and the communities in Indonesia would not accept her because she was, at the time, pregnant for 4 months.

The Director’s Decisions

5.The Director considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By Notice of Decision dated 7 May 2015 (“the Director’s Decision”), the Director refused her claim on Torture risk, BOR 3 risk and Persecution risk for the reason that her claims were not substantiated. The Director found that the level of risk of being harmed if she returned to Indonesia was low [54]; that state protection was available to her [55] and that internal relocation was an option open to her [62].

7.By Notice of Further Decision dated 16 May 2017 (“the Director’s Further Decision”), the Director refused her claim on BOR 2 risk because she was unable to establish, by evidence, of her claim under that category.

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decision, However, she did not attend the hearing scheduled on 4 August 2016. The Board had attempted in vain to contact her. The Board then issued a notice to her under section 15 of Schedule 1A of the Ordinance demanding explanation for her absence. The notice was sent to her last known address. But she did not respond to the notice. The Board therefore, in accordance with the provision of section 15 of Schedule 1A of the Ordinance, considered her appeal on paper.

9.The Board held that since the applicant was absent, it was unable to assess whether her evidence was credible in order to determine whether there was a real risk or there were substantial grounds for believing that she would suffer the harm she claimed to fear if she returned to Indonesia. Since it was incumbent upon her to establish her case for the Board, the Board decided that she had failed to do so and by its decision dated 21 April 2017, dismissed her appeal.

10.The applicant had also appealed against the Director’s Further Decision to the Board.

11.From the Director’s Further Decision, it is clear that the Director was considering the applicant’s claim on all grounds for non-refoulement protection, including BOR 2 risk. As can be seen in paragraph 1 of the Director’s Further Decision, the Director was inviting the applicant to submit additional facts, if any,

“which you consider relevant to your non-refoulement claim on all applicable grounds for non-refoulement protection, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”), including right to life under Article 2 (“BOR 2” and “BOR 2 risk”), in case you have omitted any relevant facts in relation thereto …”

Paragraph 5 said: “…As advised by our letter dated 25 April 2017 that the ImmD’s previous decision (including the assessment on the risk of your feared treatment materializing upon your return to Indonesia) dated 7 May 2015 on your risk of being subjected to torture, CIDTP and persecution risks upon your return to Indonesia will not be affected.”

12.Therefore, the Director’s Further Decision encapsulates his previous Decision. It will be incumbent upon the Board to take the Director’s Decision into consideration as well.

13.However, the Board had only considered the Further Director’s Decision in relation to BOR 2 risk only.

14.By its Decision dated 6 July 2018, the Board rejected the applicant’s appeal on BOR 2 risk for the reason that the applicant was unable to establish, by evidence, her claim on BOR 2 risk.

Application for leave to apply for judicial review

15.The applicant filed Form 86 on 24 August 2018 for leave to apply for judicial review of the Board’s Decisions.

16.In her affirmations in support of her application, she did not set out any ground in support of her application. Nor did she say that the Board was in error in coming to its decision.

DISCUSSION

17.The applicant’s Form 86 is home-made as it had left many columns blank, including the decision(s) she wanted to apply for leave for judicial review. I have to take it that she would like to have judicial review of the Board’s Decision dated 21 April 2017 as well as the Board’s Decision dated 6 July 2018 because both Decisions deal with her appeal in relation to the Director’s decisions on her non-refoulement claim. As shown above, the Board’s Decision dated 6 July 2018 deals with the Director’s Further Decision. The Director’s Further Decision encapsulates the Director’s Decision.

18.The Board rejected her appeal against the Director’s Decision for her absence at the scheduled hearing on 4 August 2016 without considering the merits of her case, that is, the facts of her case as set out in the Director’s Decision and other materials in the Hearing Bundle before it. The Board said that it was unable to determine the credibility of her evidence in relation to the risks she claimed without setting out the issues that the Board wanted to clarify with her.

19.As it turns out, the applicant said in her letter dated 9 May 2017 to the Director in response to the Director’s invitation for additional information for BOR 2 risk, that at the relevant time she was being detained and after release, she moved to live in another place. Her friend who was residing in the old address received the Board’s letter and she only passed the letter to her on 8 May 2017. It had already passed the time for the Board’s hearing. However, she did not say what steps she had taken to redress the situation.

20.In Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, the Court of Appeal held that where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application. [18] It was therefore incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor [20].

21.The Board has not considered the merits of the applicant’s case in relation to Torture risk, BOR 3 risk and Persecution risk before it made its decision on refusing her appeal on the Director’s Decision. The Board’s decision on the Director’s Further Decision on BOR 2 risk had not taken into consideration of the Director’s Decision. As such, leave must be granted to the applicant for her intended judicial review.

CONCLUSION

22.I grant leave to the applicant to apply for judicial review of the Board’s Decisions. The applicant should take out the application in accordance with Order 53, rule 5 of the Rules of the High Court.

Dated the 10^th day of August 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 10/8/2020 Erni Apriana Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 10/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Respondent’s ref. no.: USM 1554/15/5/86/I80; BOR 665/17/5/165/I54 Director of Immigration Interested Party’s ref. no.: QA T/C 352/15 (formerly RBCZ 9001642/17 & RBCZ 3001299/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)

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