Suprihatin Sutomo v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 853/2021

[2021] HKCFI 2610

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 853 of 2021

BETWEEN

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 Applicant being absent 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 applicant applies for leave to apply for judicial review of the Decision dated 19 April 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the interested party is the Director of Immigration (the “Director”).

3.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).  Her application is therefore dealt with on the papers.  According to the record, she is being detained in the Castle Peak Bay Immigration Centre.

The applicant

4.The applicant is a citizen of Indonesia.  She came to Hong Kong on 28 December 2011 as a domestic helper.  Her employment contract was prematurely terminated.  She overstayed and was arrested by police on 30 December 2015.  She lodged non-refoulement claim by written representations respectively dated 4 January 2016, 23 February 2016 and 8 February 2018 to the Immigration Department.

5.The applicant claimed that, if refouled, she would be harmed by her husband who was heavily indebted.  He demanded the applicant to give him money for settling his loans.  When she was unable to do so, he beat her up with iron bar and wooden stick.  He even stabbed her with a knife until she bled.  She came to Hong Kong to work as a domestic helper.  Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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

a.     risk of torture under Part VII C 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”).

7.By Notice of Decision dated 21 December 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there was no ground for believing that she would be harmed or killed by her husband if she returned to Indonesia [12]; that state protection would be available to her [17]and that internal relocation was an option open to her [24].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  Her 1^st Notice of Appeal was late for 2 years and 1 month and her 2^nd Notice of Appeal was late for 2 years and 1 month and 20 days.

9.The Board, had ascertained the applicant’s explanation, which states:

“….I am very sorry sir/madam for late appeal because I really don’t know what to do. Please do grant my appeal petition. Thank you so much for your kind consideration for this matter. God bless.”

10.The Board followed the UK decisions in The Secretary of State for the Home Department v Razia Begum [2016] EWCA Civ 122 (3-3-2016), and based upon the reason that the Unified Screening Mechanism have to be dealt with efficiently and at proportionate cost, which is the CPR rule 3.9 of the UK practice, and without considering the merits of the applicant’s case, came to a conclusion that there was no special circumstances which would make it unjust not to allow late filing of the applicant’s  Notices of Appeal.  On those reasons, the Board refused to extend time to the applicant to file her Notices of Appeal.  In effect, her appeal was dismissed without the merits being considered by the Board.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 on 9 June 2021 to apply for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant had not stated any specific ground in support of her application.

DISCUSSION

13.There are three observations in this case.

(1)     First, the delay for filing the Notices of Appeal was significant and serious.

(2)     Second, CPR rule 3.9 of the UK practice does not apply in Hong Kong.  CPR and Civil Justice Reform in Hong Kong are not identical, at least the objectives, one being overriding and the other underlying.  More importantly, Order 1A, rule 2(2) provides:

“In giving effect to the underlying objectives of these rules, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

It seems that the Board had not made a distinction of the CPR and the CJR before it decided to apply CPR, rule 3.9 to this case.

(3)     Third, the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“17.     Where a notice of appeal is filed out of time, s 37ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

18.     …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.

…

20.     …it was 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.”

14.By “the merits of the applicant’s case”, the Court of Appeal is obviously referring to the facts as alleged by the applicant in support of her claim and the circumstances relating to her claim.  All these are in the Director’s Decision, which should have been given to the Board by the Director under section 9(1)(a) of Schedule 1A of the Ordinance:

Director to provide facts:

(1)   The Director must, as soon as practicable after receiving a copy of a notice of appeal served under section 8 of this Schedule, provide to the Appeal Board and the person who has lodged the appeal—

(a) if the decision being appealed against is a decision under section 37ZI(1)(b) rejecting a torture claim—

(i) a copy of the completed torture claim form relating to the torture claim in respect of which the decision was made; and

(ii) a copy of the written record of any interview of the claimant conducted by an immigration officer in considering the torture claim; …”

15.I find that it is at least arguable that the applicant may succeed in her application as the Board had not considered the merits of the applicant’s case.

CONCLUSION

16.I therefore grant leave to the applicant to apply for judicial review.  The applicant should take out the application in accordance with Order 53 rule 5 of the RHC within the time as provided under the Ordinance.

Dated the 10^th day of September 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