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

HCAL 2918/2018

[2021] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2918 of 2018

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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 July 2015 (the “Notice”), his Notice of Further Decision dated 1 November 2016 (the “Further Notice”) and her Notice of Appeal/Petition Non-refoulement Claim dated 31 July 2015 (the “NOA”).

2.The decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) is reviewable by judicial process but not the decision of the Director in the Notice or Further Notice (collectively, the “Notices”) because there are established statutory procedures of appeal to the Board in relation to those Notices and the Applicant has invoked those procedures resulting in the decision of the Board dated 20 April 2017 (the “Decision”).  The Director’s decisions in the Notices were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[1].  The NOA is the Applicant’s notice of appeal against the Director’s decisions in the Notices.  It is not a decision of any administrative body.  It is not reviewable by judicial process.  In her supporting affirmation, the Applicant annexed a copy of the Decision.   The Court assumed it was her intention to seek leave to apply for judicial review of that Decision rather than her own NOA.  In view of the above, the only meaningful application the Applicant can make is to seek leave to apply for judicial review of the Decision. 

3.Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  The application is badly out of time, being one year and five months late.  To obtain extension of time for making an application, the applicant has to satisfy the court that there are credible valid explanations for the delay. 

4.In AW v Director of Immigration and William Lam[2], the Court of Appeal held that what may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(1)  length of delay;

(2)  explanation for the delay;

(3)  merits of the substantive application;

(4)  prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time; and

(5)  whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

5.Having perused the papers, the Court was of the view that there is no merit in the substantive application for leave to apply for judicial review of the Decision.  The application has been waiting for determination for two and half years due to the long queue of applications of similar nature.  It would cause the Applicant unnecessary anxiety and trouble to require her to go through the entirety of the above line of enquiries and produce explanations for the delay only in the end to find that leave would be refused for want of merit.  It would also be a waste of judicial resources.  Hence, the Court proceeded to dispose of the application solely on merits of the substantive application.

6.A notice of hearing schedule for her on 12 February 2020 had been sent to her at her address as stated in her notice of application for leave to apply for judicial review (Form 86) by registered post, but was returned unclaimed.  Another notice of hearing re-schedule for her on 21 April 2020 was sent to her by post at the same address.  This notice was not returned.  Having perused the paper, the Court considered that this application may be determined on paper and proceed to make the following determination.

The further background

7.The Applicant is an Indonesian national.  She commenced working in Hong Kong as a foreign domestic helper in 2002 until her contract of employment was terminated on 11 September 2011 when she was allowed to remain as a visitor until 17 March 2012.  She overstayed thereafter.  On 28 July 2012, she gave birth to her son in Hong Kong.  

8.A removal order was made against her on 3 September 2012 against which she appealed unsuccessfully.  On 5 December 2012, a second removal order was made against her son.  She appealed on behalf of her son and the appeal was dismissed on 24 December 2012.  She claimed that she cannot return to Indonesia because her ex-husband had threatened through her elder brother in February/March 2007 and again to her directly over the phone on 6 June 2013 to kill her.

9.With the introduction of the Unified Screening Mechanism (“USM”), her and her son’s non-refoulement claims were assessed on all four applicable grounds available under the USM, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5] and BOR 2 Risk[6].  By a Notice dated 20 July 2015 and the Further Notice dated 1 November 2016, the Director rejected their claims.  They appealed to the Board against the decision in the Notices was heard by the Board on 8 December 2016 and dismissed by the Board’s Decision dated 20 April 2017.  Now, she sought, only on her own behalf, leave to apply for judicial review of the various decisions mentioned in paragraph 1.

The Applicant’s case

10.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. 

11.The Applicant was divorced by her husband on 14 February 2007.  Two weeks later, her ex-husband sold her house without discussing with her and while she was in Hong Kong.  The Applicant asked her brother to ask her ex-husband for a share of the proceeds of sale.  Her ex-husband threatened her through her brother saying, “When you get home, let’s see what will happen.”

12.The Applicant also claimed that on 6 June 2013, she received a phone call from her ex-husband who threatened her not to return to Indonesia if she still wants to be alive.  The Applicant was afraid, hung up on the telephone and changed her telephone number.

The finding of the Board

13.The Board found significant inconsistencies between the Applicant’s evidence as stated in the NCF and her evidence before the Board.  She told the Board that her ex-husband had re-married.  She said in unequivocal language that he had changed his telephone number and had never contacted her for the 9 to 10 years from 2007 to 2016.  That statement contradicts her evidence in the NCF that her ex-husband called and threatened her on 6 June 2013.  The Applicant then went on to tell the Board that in that month, she asked her friend from the same village who returned to Indonesia to ask her ex-husband for a share of the sale proceeds. Her ex-husband then said to her friend, “If she asks, I will hurt her.  Be careful, watch out if she returns home.”  She reiterated that her ex-husband made the threat through her friend because he did not have her telephone number.   The Applicant was unable to explain the above inconsistencies.

14.The Board also doubted the Applicant’s fear because she returned to Indonesia for 12 days in July 2009. The Applicant explained that she returned because she wanted to visit her mother and her son.  The Board rejected that explanation for if she really feared for her life, she would not have returned for whatever reason.  Also, nothing eventful happened during those 12 days.  The Board found her explanation incredible and implausible and that the only reason for her return was there had been no threat. 

15.The Board found the Applicant not a credible witness and rejected her evidence about her fear and risk. There was therefore no factual basis to support her claim for non-refoulement protection on any of the four applicable grounds.  Based on the Country of Origin Information, the Board was satisfied that state protection and internal relocation were available to prevent or avoid the risks.  It also gave further reasons why the Applicant’s case did not meet the specific criteria under the four applicable grounds.

Grounds for judicial review

16.The Applicant did not state her grounds of application in her Form 86.  In her supporting affirmation filed on 19 December 2018, she only annexed the appeal bundle used at the hearing before the Board and the Decision.  Given the absence of specific grounds, the Court can only focus on possible complaints of error of law, procedural unfairness, unreasonableness, irrationality and breach of the high standard of care owed to an unrepresented claimant when considering her application.

17.The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[7]. Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

18.An applicant has to prove not only that her fears and risks are genuine, but also they fall within the criteria set out under the four applicable grounds.   On the basis of her evidence, the Board was not satisfied that the Applicant has proved her fears and risks are genuine and that those fears and risks fall within the criteria.  It found that the Applicant had failed to discharge the burden of proving her fears and risks and her entitlement to non-refoulement protection on all applicable grounds.   The Board gave detailed reasons for its Decision.   These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.

19.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

20.The decisions of the Director in the two Notices are not reviewable by judicial process as the decision had been superseded by the Decision of the Board.  The Applicant had not sought leave to apply for judicial review of that Decision.  Even if her application is amended to enable her to do so, the amended application would be badly out of time by one year and five months and in any event her claims for non-refoulement are not reasonably arguable.  There is no realistic prospect of success in the intended judicial review.  It would be futile to allow an amendment of her application.

Conclusion

21.For the above reasons, leave to apply for judicial review is refused.

Dated the 28^th day of June 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

[1]   [2018] HKCA 549

[2]   CACV 63/2015 (unreported) 3 November 2015

[3]   Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[4]   Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[5]   Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[6]   Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[7]   [2018] HKCA 524 at para 14(1)