Sumartin Andini v. Torture Claims Appeal Board

HCAL 136/2021

[2021] HKCFI 1375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 136 of 2021

BETWEEN

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 15 February 2018 granted; and

2.  leave to apply for Judicial Review granted.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Indonesia who first raised a torture claim to the Immigration Department on 29 April 2010 on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband for failing to repay his debts for him. She was later released on recognizance pending determination of her claim.

2.On 21 June 2012 the Director decided that no further action would be taken on her torture claim after she failed to report on her recognizance and could not be contacted since 12 July 2011.

3.Upon receipt of the Applicant’s request dated 28 March 2013 to re-open her claim, the Director resumed processing her claim.

4.However, the Applicant again could not be contacted thereafter, and on 25 November 2013 the Director decided that no further action would be taken of her claim.

5.By letters dated 13 and 14 of March 2014 the Applicant requested to proceed with her claim, and the Director resumed processing her claim under the Unified Screening Mechanism (“USM”), including conducting a briefing session with her on 6 April 2017 during which she was given a blank Non-refoulement Claim Form (“NCF”) to be completed and returned within 28 days by 4 May 2017, as well as provision of legal representation from the Duty Lawyer Service (“DLS”) which the Applicant accepted on the same day.

6.On 4 May 2017 DLS informed the Director of no further instruction to act for the Applicant in her claim.

7.As no completed NCF was received from her, the Director by a letter dated 8 May 2017 informed the Applicant that her non-refoulement claim had been deemed withdrawn on 5 May 2017 due to her failure to return the completed NCF within the time limit, and that her claim so treated withdrawn may only be re-opened if she could provide sufficient evidence in writing to satisfy an immigration officer that she had not been able to return the completed NCF as required due to circumstances beyond her control.     

8.On 11 October 2017 the Applicant in writing to the Director requested to re-open her non-refoulement claim and stated as follows:

“I failed to submit my claim form within 28 days because I was pregnant and sick at that time and eventually my fetus died inside my womb. I cannot return to my home country, Indonesia, because of the problems with my family in Indonesia. In addition, I want to act on behalf of my daughter, Khan, Maryam (RBCZ 10743/14), in regards to her non-refoulement claim in Hong Kong and I would like to apply for joint assessment for both of our claims. I hope the Immigration Department would jointly assess our claim.”

9.By a letter dated 17 October 2017 the Director informed the Applicant that her claim may only be re-opened if she could provide sufficient evidence in writing on or before 24 October 2017 to satisfy an immigration officer that she had not been able to return the completed NCF by 4 May 2017 due to circumstances beyond her control, and that she was also asked to provide the following information and evidence:

(a)  detailed reasons for not contacting the DLS for the completion and submission of the NCF;

(b)  details of time and place(s) of seeking medical treatment for pregnancy and hospitalization;

(c)  relevant medical evidence of her pregnancy and miscarriage; and

(d)  special circumstances by reason of which she had not been able to return a completed NCF.  

10.On 21 and 23 October 2017 the Applicant replied in writing and repeated her claim of threats from her husband over his debts problem without providing any further details or documentary evidence as requested by the Director regarding her alleged pregnancy or miscarriage or any other circumstances that were beyond her control that she had not been able to return her completed NCF.

11.By a Notice of Decision dated 1 November 2017 addressed to the Applicant c/o Castle Peak Bay Immigration Centre (“CIC”), the Director refused to re-open her non-refoulement claim upon finding that she had had ample opportunities to return a completed NCF as required, and for which she had failed to provide sufficient evidence in writing to satisfy an immigration officer that she had been unable to do so due to circumstances beyond her control.     

12.On 8 November 2017 the Applicant in CIC lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which the Board did not conduct any oral hearing and proceeded to deal with her appeal in her absence and on paper, and on 15 February 2018 it dismissed her appeal and confirmed the Director’s decision not to re-open her claim.

13.In its decision the Board set out all the relevant background information of the Applicant’s case as provided by the Director and the relevant law on re-opening a claim, and it then considered the Director’s decision and agreed with it that the Applicant had failed to provide sufficient evidence to satisfy an immigration officer that she had not been able to submit her completed NCF as required due to circumstances beyond her control, and accordingly dismissed her appeal and confirmed the Director’s decision.     

14.On 5 February 2021 the Applicant in CIC filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation, nor did she request any oral hearing for her application. 

15.The Applicant was by then also seriously out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

16.As the last day of the three-month period for her to file her Form 86 fell on 15 May 2018, the Applicant was therefore late by more than 2 years and 8 months with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKCA 393.

17.In the Applicant’s case, a delay of more than 2 years and 8 months must be considered as very substantial, for which she did not provide any explanation in her Form or supporting affirmation, and while it appears that she was then and is in fact still being detained at CIC and is unrepresented, neither reason per se could justify such a serious delay.    

18.As for the merits of her intended application, again as noted above the Applicant has not put forward any proper ground for her intended challenge. Nevertheless, in view of the seriousness of the issue at hand, which is in effect to deny her the opportunity to present her non-refoulement claim or to seek non-refoulement protection, and not just for herself but, as will be apparent below, also for her daughter, this Court will adopt an enhanced standard in scrutinizing the decision of the Board to ensure that high standards of fairness had been applied in its refusal to allow the Applicant to re-open her claim and in dismissing her appeal.

19.First, it would be relevant to remind myself of Section 37ZG of Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) in relation to the withdrawal and re-opening of a non-refoulement claim as follows:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that –

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).”

20.As recorded in the Director’s decision of 1 November 2017, which was as noted addressed to the Applicant in CIC, the Applicant’s stated reasons for failing to return her completed NCF were essentially due to her alleged pregnancy and its subsequent miscarriage that had prevented her from doing so within the time required, but when asked to provide further details and particulars of her such pregnancy and miscarriage including medical evidence, she did not do so and hence she was considered as having failed to satisfy an immigration officer that it was due to those circumstances beyond her control that she had not been able to return her completed NCF as stipulated under subsection (3) above.

21.It is of note that in paragraph 2 of his decision, the Director also referred to a non-refoulement claim made by the Applicant for her daughter which was also not processed for the following reason:

“Your former non-refoulement claim was deemed withdrawn on 5 May 2017 due to your failure to return the completed Non-refoulement Claim Form (“NCF”) within the time limit. By our letter dated 8 May 2017, you were informed of our decision. In respect of your daughter, you were informed that her non-refoulement claim was made by our letter of 12 April 2017. Due to the fact that you could not be contacted, you were informed that no further action was taken on her case by our letter of 25 August 2017.”

22.In her subsequent appeal to the Board on 8 November 2017 against the Director’s decision, the Applicant in her Notice of Appeal stated that she was still being detained at CIC, and in Section 2(B) of the Notice she set out her grounds of appeal as follows:

“My name is Sumartin Andini, Indonesian. I am writing to your department to appeal/petition your notice of decision date 1 November 2017. I am currently serve my sentence at Castle Peak Bay Immigration Centre since at 21 October 2017. I’ve received this notice on 2 November 2017. I’ve carefully read this notice of decision, and will my best understanding of the reason and grounds laid out in the notice. I’d like to make this appeal/petition to your department based on the follow grounds.

I really can’t return back to my country Indonesia, because my life still in danger. My husband and my family borrow money from the loan, and he always force me to pay it and the money to the loan. If I don’t pay money to the loan my husband will kill me, that’s why I can’t return back to my country. I am really afraid with my husband. He always threats will kill me if I don’t pay to the loan, and I am in here also have a daughter, and I want stay with my daughter in Hong Kong, and I am really sorry to you good officer because about the past I have not been able to return a completed claim form in Kowloon Bay. On that time I had not been able because I was sickness of my pregnancy and miscarriage in the Kwong Wah Hospital Yaumatei. That’s why I can’t coming for contacting the DLS for the completion and submission of the NCF with your consider I hope so to you good officer to understand and for the evidence is like the document of my pregnancy and miscarriage is was lose. I lose all my things on that moment because I no have home, and I am homeless on that time. So I hope and I am begging to your good officer to understand of my situation on that time why I have not been able to return a completed claim form in Kowloon Bay. Please kindly help me. Thanks you very much Sir/Madam.”      

23.From these the Applicant had provided additional information regarding her situation or circumstances hitherto not disclosed in her request to the Director to re-open her claim:

(a)  She had been detained at CIC since 21 October 2017, 4 days after the Director’s letter of 17 October 2017 requesting her to provide sufficient evidence in writing regarding her alleged pregnancy and miscarriage including medical evidence;

(b)  It was at Kwong Wah Hospital, Yaumatei where she had attended for her alleged pregnancy and miscarriage;

(c)  It was for the same reasons that she was unable to contact the DLS to complete her NCF as required;

(d)  She had been rendered homeless thereafter and lost all her documents regarding her alleged pregnancy and miscarriage.         

24.In dealing with her appeal in her absence and on paper, the Board in its decision referred to the Director’s decision in details as well as the relevant Section 37ZG of the Ordinance, and arrived at its decision agreeing with the Director’s as follows;

“23. Having carefully considered all the relevant issues in this appeal, I decline to allow the Appellant’s appeal against the Director’s decision not to re-open her non-refoulement claim application. The Appellant failed to return a completed NCF resulting in her claim being deemed withdrawn under Section 37ZG(1) of the Ordinance on 4 May 2017. She then applied to re-open his non-refoulement claim by written request respectively on 11 October 2017, 21 October 2017 and 23 October 2017. On 17 October 2017, the Director requested the Appellant to provide sufficient evidence in writing on or before 24 October 2017 to satisfy an immigration officer that the reason she had not been able to return the completed NCF as required was due to circumstances beyond her control. The Appellant failed to provide any or sufficient evidence in writing to satisfy an immigrant officer that she had not been able to submit the completed NCF as requested due to circumstances beyond her control. It was under these circumstances that the Director refused the Appellant’s application to re-open her non-refoulement claim.

24. Section 37ZG(3) provides that …

… The Appellant had not provided sufficient evidence in writing to support her application to re-open her non-refoulement claim under section 37ZG(3) of the Ordinance. Under these circumstances, the Director was justified to refuse the Appellant’s application to re-open her non-refoulement claim.

25. The Appellant’s appeal is accordingly dismissed and the Director’s Decision dated 1 November 2017 is confirmed.”  

25.The duties of the Adjudicator in determining an appeal/petition brought by an applicant against the Director’s decision are set out in the Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme, 4^th edition, 12 September 2016 (“Petition Guide”), which includes that the Adjudicator must have regard to the individual circumstances of each case and to take into account all relevant considerations [see 21.1].

26.While the Adjudicator in the present case may be entitled to agree with the Director’s reasons for refusing to re-open the Applicant’s claim on the basis of the same facts of her case, but as noted above, the Applicant did in her Notice of Appeal set out her grounds for challenging the Director’s decision including those additional information as listed above as to what she claimed to be circumstances beyond her control that she had not been able to return her completed NCF, of which the Adjudicator was required to his own assessment and evaluation, and to ask himself, for example, whether the Applicant who was then in detention at CIC would have been able to provide the relevant medical evidence of her pregnancy and miscarriage within 7 days as required by the Director, or that if she had indeed lost all those documents after she had been rendered homeless, would she have been able to obtain their replacement from the authority within that time allowed by the Director, and if he were to take issue with the credibility as to her alleged pregnancy or miscarriage or of her claim of being rendered homeless thereafter, he should have explained why he did not find it necessary to conduct an oral hearing for the Applicant’s appeal to deal with that issue. In the Board’s decision the Adjudicator did not appear to have carried out any of those consideration or enquiries.

27.The principles and methods for establishing and assessing a claim have been well established, and while the burden of proof lies on an applicant to establish his claim, it is for the adjudicator charged with determining his status to assess the validity of the evidence and the credibility of the applicant, as set out in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status, (1979 re-edited 1992), and adopted by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 as Li CJ stated at para 21:

“UNHCR has published a Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-edited 1992). It provides guidance to Contracting States and would no doubt be followed by UNHCR itself in conducting refugee status determination. It states that the relevant facts will have to be furnished in the first place by the applicant himself. The examiner, that is, the person charged with determining his status, will then have to assess the validity of any evidence and the credibility of the applicant’s statements. The Handbook recognizes the principle that the burden of proof lies on the person submitting a claim. But it notes that often, the applicant, as a person fleeing form persecution, may have arrived with the barest necessities, even without personal documents. So he may not be able to support his statements by documentary or other proof. The Handbook states that, while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: see para. 185 and 196 of the Handbook.”

28.In fact, high standards of fairness would require the Adjudicator to make those enquires and consideration in the determination of the Applicant’s appeal in this type of applications, as Li CJ in Prabakar went on to state as follows:

“43. The question in this appeal concerns the standards of fairness that must be observed by the Secretary in determining in accordance with the policy the potential deportee’s claim that he would be subjected to torture if returned to the country concerned. One is concerned with procedural fairness and there is of course no universal set of standards which are applicable to all situations. What are the appropriate standards of fairness depends on an examination of all aspects relating to the decision in question, including its context and its nature and subject matter: R v Home Secretary, ex p Doody [1994] 1 AC 531 at p.560D-G.

44. Here, the context is the exercise of the power to deport. The determination of the potential deportee’s torture claim by the Secretary in accordance with the policy is plainly one of momentous importance to the individual concerned. To him, life and limb are in jeopardy and his fundamental human right not to be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.”  

29.In the Applicant’s case, the context is the exercise of the power to refuse the presentation of a non-refoulement claim and then to deport, with the Board’s determination of whether the Applicant had in her then situations provided sufficient evidence to satisfy an immigration officer that due to her alleged pregnancy and miscarriage as well as being homeless at that time without assistance from DLS that she had been unable to return her completed NCF for her non-refoulement within the time required, and that whether it was reasonable that while being detained at CIC she was required to provide medical evidence of her alleged pregnancy and miscarriage within 7 days as required by the Director.   

30.It is critical to recall that the two-tier screening process under USM of non-refoulement claims is not an adversarial process, nor is it the role of the determining authority to contest an application for international protection or strive with zeal to identify indicators of a lack of credibility, but rather it is a duty to assess the relevant elements of the application in cooperation with the applicant to ensure that the application is examined and decision taken objectively and impartially, as emphasized by the UNHCR in its report “Beyond Proof – Credibility Assessment in EU Asylum System”, May 2013 (“UNHCR Report”) at p. 37 of the importance of such duty in dealing with applications for international protection.

31.Here with the Applicant being detained at CIC without further representation from DLS, it would have been fairly straightforward for the Board, and for that matter the Director, to take initiation to verify with Kwong Wah Hospital as to the Applicant’s alleged pregnancy and miscarriage, as high standards of fairness require them to adopt an active role in ascertaining the Applicant’s assertions instead of just sitting back and putting her to strict proof in her circumstances, notwithstanding her obligation as stipulated by Section 37ZG(3) of the Ordinance: see Prabakar, para 54; ST v Betty Kwan [2014] 4 HKLRD 277 at para 39.

32.In the premises I am of the opinion that it is reasonably arguable that (i) the Board in refusing to allow the Applicant’s appeal against the Director’s decision not to re-open her non-refoulement claim, it failed to take into account or consideration all the relevant matters including the grounds set out in the Applicant’s Notice of Appeal, and if it had, it failed to explain or give reasons why they were not accepted by the Board as circumstances beyond the Applicant’s control to return her completed NCF as required, and/or (ii) that the Board failed to apply high standards of fairness in its determination that the Applicant had failed to provide sufficient evidence in writing to support her application to re-open her non-refoulement claim.     

33.As such and for all the reasons given, I am of the view that there are merits in the Applicant’s intended application for judicial review of the Board’s decision, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and accordingly I extend time to the Applicant’s application, and grant leave for her to do so on the bases as stated above.

34.It follows that in accordance with Order 53 rule 5 of the Rules of the High Court, Cap 4A, the Applicant shall file an originating summons within 14 days of the decision, and serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 13^th day of May 2021.

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