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

HCAL 465/2019

[2022] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 465 of 2019

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:

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.I notice that there were two minors together with the applicant in their application for non-refoulement before the Director of Immigration (the “Director”) and before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”). For reasons unknown, the two minors are not included in the applicant’s application.

2.The applicant applies for leave to apply for judicial review of the Decision dated 12 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Her application filed on 19 February 2019 is late for about 14 months.  I shall deal with this issue below.

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

5.The applicant is a national of Indonesia.  She came to Hong Kong as a foreign domestic helper with her last employment contract ended prematurely. Her limit of stay was until 29 October 2009.  On 29 October 2009, she was granted an extension of stay as a visitor.  However, she did not depart and overstayed.  Her asylum application with the United Nations High Commissioner for Refugees was closed on 24 March 2010.  On 30 September 2011 and 1 October 2011 respectively, she gave birth to two daughters.  On 14 November 2011, the applicant was sentenced to two month’s imprisonment for breach of condition of stay by overstaying.  On 17 December 2011, together with her daughters, she raised a torture claim which was rejected on 28 February 2013.  On 16 June 2014, the applicant and her daughters again raised a non-refoulement claim. 

6.Their claims were made on the basis of the applicant’s claim that, if refouled, they would be harmed or killed by the money lender and the enemies of Mr. Sarno.  According to the applicant, she married Mr. Sarno in around September 1995 but it was an abusive marriage.  Subsequently, she divorced Sarno for an incident happened in 2001 when 15 motorcycles broke into her house with people seeking to locate Sarno.  Later in 2004, she continued to suffer threats from Sarno for the money and for her refusal to get back with him. Sarno’s threats and demands for money continued to 2012.  Thereafter, she was informed that Sarno owed a lot of debts and her son was attacked by Sarno’s creditors in 2013.  In 2015, she learnt that Sarno was killed and, since they were not officially divorced, the applicant feared that Sarno’s creditors would chase her for the repayments.  Out of fear, she and the daughters stayed in Hong Kong for protection.  In addition, the applicant claimed that she and her daughters would be subjected to discrimination as the daughters were born out of wedlock and they would be isolated at school.  Details of their claims are set out in paragraph 7 of the Notice of Decision dated 5 July 2016 by the Director (“the Director’s First Decision”) and paragraphs 13 to 30 of the Board’s Decision described below.

The Director’s Decisions

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

a.     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”);

b.     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

c.     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”).

8.By the Director’s First Decision, the Director refused their claims on the grounds of BOR3 risk and Persecution risk for the reason that they were not substantiated. The Director found that the level of risk of them being harmed or killed upon refoulement was assessed to be low [16]-[19]; that state protection would be available to them [20]-[22] and that internal relocation was an option open to them [23]-[26].  In a Notice of Further Decision dated 16 December 2016, the Director also rejected their claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that they would be subjected to violation of their right to life upon their return to Indonesia. 

9.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

10.The applicant and her daughters appealed the Director’s Decisions to the Board.  The Board scheduled their appeal for an oral hearing on 9 October 2017.  The petitioners did not appear at the scheduled time.  By a notice dated 9 October 2017 sent under section 15 of Schedule 1A of the Immigration Ordinance, Cap. 115, the petitioners were required to provide a satisfactory written explanation for their absence, otherwise, the Board would proceed to consider the appeal in their absence. Yet they failed to do so. The Board therefore proceeded to determine the appeal in their absence. 

11.The Board listed out matters that required the applicant’s clarifications at paragraph 34 of the Board’s Decision.  It proceeded to conclude that:

“35. By failing to testify before the Board and answer questions, the Petitioner has denied the Board the opportunity to better understand the Petitioners’ situation and test the truthfulness of the Petitioners’ claims. What may have been a joint endeavor to discover the extent of the risks faced by the Petitioners, with the Petitioner providing evidence and the Board considering and assessing that evidence, has been lost. In the absence of testimony from the Petitioner the Board cannot be satisfied whether the Petitioners are unable to return to Indonesia for the reasons stated.

36. Without the Petitioner’s testimony and her response to the kinds of issues set out above, the Board is unable to make a finding that the Petitioners would be at risk of harm by SARNO’s associates, creditors and enemies if they were returned to Indonesia.  The Board is likewise unable to determine whether the level of discrimination toward her, and her daughters born out of wedlock, would be such as to require protection from refoulement to Indonesia.”    

12.As a result, the Board dismissed their appeals.

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

13.The applicant filed Form 86 dated 19 February 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant attached the Director’s First Decision and the Board’s Decision to her affirmation without specifying any ground in support of her application.

DISCUSSION

15.As mentioned in paragraph 1 above, this application is seriously and significantly late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall first consider the prospect of the intended appeal.

16.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

18.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

19.The Board had served the statutory notice to the applicants requiring them to provide their explanation for their absence before the Board and telling them that if they failed to do so, the Board would proceed to consider their appeal in their absence.  They had failed to respond to the Board’s notice.  The Board was, under the law, entitled to come to its conclusions as it did for their appeals.  The Board was entitled to draw adverse finding of her evidence against her.  Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27 considered[1].

20.The Board, in its Decision, had set out all the questions that the adjudicator wanted to asked her in order to ascertain the real situations of her case and her children’s case. Even now, the applicant has not explained why she was absent at the hearing before the Board or given any answers to those questions for this application.

21.I have taken into account of the Court of Appeal’s decisions in Re Masurd [2021] HKCA 341/2021, 7 October 2021 and Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48.  I have distinguished this case from those cases for the reasons that the applicant in this case was absent and there was no way that the Board could locate her; that in her absence, it is not possible for the Board to advise her the adverse consequences of not giving answers to the questions that the Board intended to put to her; that the Board took issues not only on the credibility of her evidence on the facts of her case, but also the alternative of internal relocation.  Bearing in mind that the burden of proof of her case being on the applicant, her absence has rendered the Board not possible to clarify the matters from her.  It is quite apparent to the applicant that she has the duty to cooperate with the Board and her absence without legitimate reason will have adverse effect on her appeal.  The advanced standard of fairness principle will not assist her case if she does not cooperate with the Board.

22.The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

24.I refuse to extend time for the applicant to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 21^st day of January 2022

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] “27. … It is only when the failure of the accused to give evidence is a circumstance which may bear upon the probative value of the evidence which has been given and which the jury is required to consider, that they may take it into account, and they may take it into account only for the purpose of evaluating that evidence.  The fact that the accused's failure to give evidence may have this consequence is something which, no doubt, an accused should consider in determining whether to exercise the right to silence ... But it is not to deny the right; it is merely to recognize that the jury cannot, and cannot be required to, shut their eyes to the consequences of exercising the right.”