Case Document

100%Judiciary

HCAL 1598/2019

[2021] HKCFI 1023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1598 of 2019

BETWEEN

	Cicik Wahyu	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong as a domestic helper on 31/7/2013. Her 2-year-contract was terminated on 11/3/2015. She overstayed until 18/5/2015 when she was arrested[1]. She raised the non-refoulement claim of this case on 26/5/2015.

2.Her non-refoulement claim was rejected by the Director on 27/10/2015. Her appeal to the TCAB was rejected on 21/3/2017 (1^st decision) on the ground that she was late in filing the notice of appeal for over 5 months [2].

3.In the interim on 25/5/2017, the Director invited the applicant to file additional facts for further assessment including BOR 2. The applicant did not respond. The Director proceeded to assess the claim based on the existing facts. The Director dismissed the claim on 18/8/2017. Her appeal was dismissed by the TCAB on 6/6/2019 (2^nd decision) on the ground of late filing for about a month [3].

4.The applicant filed the leave application in this case on 12/6/2019. She only mentioned the filing date of the notice of appeal in relation to the 2^nd decision. I initially take it that she sought leave to review the 2^nd decision of the TCAB dated 6/6/2019 only.

5.However, in view of the Director’s indication that the additional facts, if any, would be used to consider all applicable grounds including BOR 2 [4], I would adopt a flexible view on the scope of the leave application. I take it that all bases of the claim were finally rejected only after the Director’s decision on BOR 2 dated 18/8/2017. I take it that the applicant wished to seek leave in relation to both decisions.

6.The applicant feared that she might be harmed or killed by a loan shark and/or her husband if she returned to Indonesia. She was not able to repay her husband’s debts.

Background [5]

7.The applicant was born on 7/7/1976. She was from Tulungagung, Jawa Timur, Indonesia. She got married in 2001. She gave birth to a son in 2003. She had education for 12 years. She had been employed as a domestic helper in Indonesia, Singapore and Hong Kong (July/2012—March/2015).

8.Her husband was jobless and a heavy gambler. Before and after marriage, she had to work hard to repay her husband’s debts ranging from 400,000—600,000 rupiahs each time. Her husband assaulted her if she did not give him sufficient money. She sustained bruises but could not afford treatment. At times, she deserted home and stayed with her father. However, her husband forced her to return and assaulted her severely. He threatened to kill her.

9.Since 2010, a loan shark and his men came to her home to pursue some debts. They came every few days. However, her husband managed to escape. The loan shark threatened to kill her family. They even broke her properties in the house. Her husband would not listen to her. She did not make a report. The situation continued for a few months.

10.From August to October 2010, she stayed at the agency in Surabaya and received training for 2 months. She left Indonesia to work in Singapore in order to repay her husband’s debts. She remitted $300 Singaporean dollars each month. Later, his father was also threatened by the loan shark. He even sold his land (70 million rupiahs) to repay the loan shark. It transpired that this was only sufficient for the principal. [6] They had to continue repaying the interest.

11.She returned to Indonesia about 3 months later as her contract was terminated.[7] The loan shark came to her home and assaulted her. She did not require treatment as the injuries were not serious. On a couple of occasions, her husband was located at home and assaulted by the loan shark. Her husband eventually left home without informing her. She did not know his whereabouts since then.

12.She was in so much fear that she went to her aunt at Tebet with her son. Her husband and the loan shark found out subsequently. They called and threatened her for money. However, she was safe at Tebet for several months. She had not reported to the police.

13.She left her son with her own father before coming to Hong Kong in July 2012. She sent her salary back to her husband for repayment each month. She was afraid that her husband and the loan shark might harm her family.

14.She changed her phone number very often to avoid her husband and the loan shark. She last contacted her husband in March 2015. Her husband and his own father were still residing at the same place.

15.She did not seek assistance from the Indonesian Police. She was afraid that the loan shark might find out. She could not relocate as the loan shark would be able to locate her somehow.

Decision of the Director of Immigration [8]

16.The Director concluded that there was no substantial ground to believe any real risk of harm from her husband and the loan shark. The reasons were:

(a) The ill-treatment from her husband and the loan shark did not amount to “a minimum level of severity”.

(i) The assault from her husband only caused bruises. There was no evidence that her husband intended to cause serious injuries to her. She had never sought medical treatment.

(ii) She knew very little about the background of the loan shark. She did not know the amount of the debt. She did not know if there was a loan agreement. The loan shark did not cause serious injuries. She had never sought treatment.

(iii) The loan shark never carried any weapon when they came to her home. Had they wanted to kill or harm her seriously, there were plenty of chances. This indicated there was no intention to kill or harm her seriously. They just wanted to put pressure on her husband to repay.

(b) Her husband and her father-in-law had all along been residing at the same house. They were never harmed or killed by the loan shark. It was unconvincing that the loan shark targeted her instead of her husband who was the debtor.

(c) The applicant was the main source of her husband’s income. He did not harm her when she and her son stayed at Tebet. This indicated that her husband had no real intention to harm or kill her.

(d) The applicant had stayed at the agency for 2 months in Surabaya before coming to Hong Kong. She was safe there. Her husband was jobless. He would not have the resources to locate her anywhere in Indonesia. Likewise, the loan shark would not have the resources too.

(e) She had never sought help from the police. There was reasonable State protection in Indonesia. There were reasonable alternatives for relocation.

17.The Director dismissed her claim based on BOR 3, persecution and torture risk.[9]

18.The Director further invited the applicant to submit evidence in relation to BOR 2 before 6/8/2017. The applicant did not respond. The Director rejected the claim based on BOR 2.[10]

Decision of the Torture Claims Appeal Board dated 21/3/2017 (1^st decision)

19.The TCAB received the notice of appeal on 27/4/2016. The adjudicator found that there was a delay of over 5 months as the deadline for lodging an appeal should be 12/11/2015[11]. The adjudicator refused late filing based on the following findings:

(a) The adjudicator found that there was no reason given for failing to file the notice of appeal within time. There was no supporting documentary evidence.

(b) The TCAB wrote to the applicant on 24/1/2017 to request for additional information. There was no response. The TCAB re-send the letter for additional information to the addresses as recorded in the Immigration Department and on the notice of appeal. There was no response.

(c) While the notice of appeal had not been validly filed, the adjudicator proceeded to consider the grounds of appeal. The findings were that the delay was lengthy and there was no explanation for it.

(d) The applicant was detained by the Immigration Department between 9/4/2016—6/5/2016. However, this could not explain the late filing which should be done on or before 12/11/2015. [12]

20.The adjudicator opined that the applicant only provided information which related to merits of the case, her inability to find documents, lack of funds and fear of filing an appeal. She failed to make out a case of special circumstances to justify late filing.

21.The adjudicator was satisfied that it was not unjust to refuse late filing. [13]

Decision of the Torture Claims Appeal Board dated 6/6/2019 (2^nd decision)

22.In response to the Decision of the Director dated 18/8/2017 on BOR 2 assessment, the applicant filed a notice of appeal on 4/10/2017 [14]. It was out of time for about a month.

23.The adjudicator had considered the merits of the intended appeal and other reasons for late filing[15]. The adjudicator found that the loan dispute was a personal matter. The loan shark did not regard the applicant responsible for the repayment of the loan. There was no State involvement. The applicant had never reported to the police. There was reasonable State protection and relocation alternatives. The merits of her case was far from compelling.[16]

24.The adjudicator did not accept the applicant’s assertion that she had not received the Director’s decision dated 18/8/2017. There was no information to explain why this might be so. The applicant was refused late filing on 21/3/2017(1^st decision). She must be aware of the strict timeframes for appeal. The decision of the Director was made a few months after the 1^st decision. She was again late about a month in filing the notice for appeal to the TCAB. The adjudicator was of the view that the applicant had not been prosecuting her case with due enthusiasm.

25.Having considered all circumstances, the adjudicator refused the late filing.[17]

Judicial Review

26.The applicant filed the leave application for judicial review on 12/6/2019. In the affirmation in support of the application, she only mentioned that her husband was a heavy gambler.

27.For the reasons mentioned in paragraph 5 above, I consider this leave application in relation to both decisions of the TCAB.

28.This court set a hearing on 26/1/2021. In the hearing, the applicant indicated that she did not want to return to Indonesia. She feared that her husband and the loan shark could still locate her. The applicant had no update of the background information during the hearing.

29.In the 1^st decision, the adjudicator had not considered the merits of the intended appeal. He refused late filing as the applicant did not give reasons for the delay of 5 months. This is an irregularity which may warrant granting of leave in view of the decision of the Court of Appeal[18]. However, for the reasons below, I do not think leave should be granted.

30.In the 2^nd decision, the adjudicator had considered the merits of the intended appeal. He held that the applicant’s case were far from compelling. He also rejected the applicant’s assertion that she had not received the Director’s decision in detail. I agree with his reasoning. The rejection of the applicant’s arguments is justified. It is correct for the adjudicator to refuse late filing given the circumstances.

31.It transpired that about 2 months after the 1^st decision, the applicant was invited by the Director to file any additional facts for further assessment on all grounds including BOR 2. She did not respond. On 18/8/2017, the Director rejected the BOR 2 claim based on the existing information. The earlier decisions [19] based on other grounds were still valid.

32.The background facts were identical when the TCAB considered the 1^st and 2^nd decisions. The adjudicator had not considered the merits of the applicant’s intended appeal in the 1^st decision. Had he done so, it was inevitable that he would have arrived at the same conclusion—that there was no merit in the intended appeal. Given the circumstances, despite the irregularity in the 1^st decision, I refuse leave for judicial review for both decisions.

Conclusion

33.In my judgment, the leave application is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.

Dated the 19^th day of April 2021.

	(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 19 April 2021 Cicik Wahyu 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 19 April 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 3547/16/4/155/I311 & BOR 1001/17/10/4/I81 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 996/15 & RBCZ 9002024/17 (formerly RBCZ 301/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] She was sentenced to imprisonment for 2 weeks suspended for 3 years.

[2] The decision of the Director was dated 27/10/2015. She filed her notice of appeal on 27/4/2016. It was late for over 5 months. Decision of the TCAB dated 21/3/2017, §§5—10.

[3] The decision of the Director was dated 18/8/2017. The applicant filed the notice of appeal on 4/10/2017. It was about one month late. Decision of the TCAB dated 6/6/2019, §§18—21.

[4] Decision of the Director dated 18/8/2017, §1.

[5] Decision of the Director dated 27/10/2015, §§6.1—6.36.

[6] Information from the father-in-law.

[7] She told the Director in the interview that she returned to Indonesia as her mother died.

[8] Decision of the Director dated 27/10/2015, §§13—18

[9] Decision of the Director dated 27/10/2015, §§19—30.

[10] Decision of the Director dated 18/8/2017.

[11] There is some ambiguity as to the counting of the 14-day-appeal period. Section 37ZS (1) stipulated that it is 14 days after the notice is given to the person. While the Director indicated in the last paragraph of the decision that it should be 14 days from the date of the decision. The latter is the usual practice for court orders. In any event, it won’t affect the outcome of this case. Decision of the TCAB dated 21/3/2017, §§5—10.

[12] Decision of the TCAB dated 21/3/2017, §§13—19.

[13] Decision of the TCAB dated 21/3/2017, §§20—27.

[14] The adjudicator had considered in detail the date on which the applicant should have received the Director’s decision. Decision of the TCAB dated 6/6/2019, §§13—21.

[15] Pursuant to the ruling of the Court of Appeal in Qasim Ali, CACV 547/2018.

[16] Decision of the TCAB dated 6/6/2019, §§22—26.

[17] Decision of the TCAB dated 6/6/2019, §§27—36.

[18] Qasim Ali, CACV 547/2018.

[19] The decision of the Director dated 27/10/2015 and the 1^st decision of TCAB dated 21/3/2017.

Cites 2 cases

Cases cited in this judgment

Re Cicik Wahyu

HCAL 1598/2019

High Court CFI11 Jan 2022

Re Qasim Ali

CACV 547/2018