Nurhayati Alias Nur Hayati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 515/2022

[2022] HKCFI 2621

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 515 of 2022

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 6 May 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.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.

3.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

4.The applicant is a national of Indonesia.  She entered Hong Kong on 28 February 2012 as a foreign domestic helper and was permitted to remain until 28 January 2014, or two weeks after the termination of her employment contract.  On 10 March 2012, her employment contract was prematurely terminated.  However, she did not depart and had overstayed since 25 March 2012.  Her non-refoulement claim was lodged through written representations dated 20 February 2014, 3 March 2014 and 5 November 2016 respectively.  The basis of her claim was that, if refouled, she would be harmed or killed by her brother Agus Winarto. 

5.According to the applicant, on a date unrecalled by her, Agus assaulted her for not remitting her salary back home.  She sustained injuries, including a dislocated right lower leg.  Later in 2006, the applicant went to Malaysia for work.  She returned in 2008 and confronted Agus about the whereabouts of her remitted money.  Agus was furious and assaulted her.  While she was at home, various debt collectors visited her house and demanded repayments from Agus.  Since then, Agus had been chasing her for money and assaulting her if she did not comply with his requests.  Out of fear, she eventually fled to Hong Kog for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 20 March 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm from Agus upon her refoulement was assessed to be low.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [21]-[25]; (ii) Agus exhibited no real intention to seriously harm or even kill her [26]-[32]; (iii) state protection would be available to her [33]-[44]; and (iv) internal relocation was a viable alternative [45]-[51].

The Board’s Decision

8.On 20 December 2021, the applicant filed a notice of appeal/petition against the Director’s Decision.  She was more than four years out of time [4].

9.The Board considered section 37ZT of the Ordinance.  It found that the Director’s Decision was presumed to be delivered to the applicant on 1 April 2017 or, the latest, 3 April 2017 [8]-[10].  It then proceeded to consider whether there were any special circumstances for the delay. 

10.In the applicant’s notice of appeal/petition, she stated that (i) she only received the Director’s Decision on 14 December 2021; and (ii) she was imprisoned and her imprisonment ended on 13 November 2021, which also followed with a 9-day quarantine [11].

11.Having consulted with the Immigration Department, the Board noticed that the applicant was released on 2 December 2016 and later was arrested by the police for the offence of robbery on 22 April 2017.  It also noted that the applicant was taken to court on 24 April 2017 and remanded in custody.  On 3 July 2018, she was sentenced to 6 years of imprisonment.  Later, on 4 January 2019, she was sentenced to 13 months of imprisonment for another offence, of which 10 months would be served consecutively to the 6-years imprisonment.  On 13 November 2021, she was transferred to be detained by the Immigration Department upon discharge from prison [13].

12.The Board also inquired with the duty lawyer services (“DLS”) who represented the applicant at the material time.  The DLS stated that they were unable to contact the applicant, either through phone or mail, between 21 March 2017 to 29 March 2017, the period of which the applicant was not in detention.  On 31 March 2017, the applicant contacted DLS after they ceased to act for her.  Nevertheless, a meeting was arranged for the applicant to meet with her former legal representative on 1 April 2017.  On the said date, the applicant informed the DLS that, due to financial difficulty, she was unable to travel to the DLS’s office.  In return, the DLS reminded the applicant of the deadline in lodging her appeal, i.e., on or before 3 April 2017.

13.Despite the applicant’s physical absence at the meeting, her former legal representative, through the help of an interpreter, explained to her via telephone call the Director’s Decision and also informed her that a copy of the said decision was posted to her last known address [14].  The Immigration Department confirmed that the Director’s Decision was posted to the applicant’s last known address on 30 March 2017 [15].

14.In light of the chronicled events, the Board found that the applicant was informed by the DLS that the Director’s Decision was issued; that she had received legal advice of the deadline in lodging the appeal; that she was on recognizance at that time; and that the Director’s Decision was sent to the applicant’s address prior to her arrest. 

15.As a result, the Board found that the applicant should have had the opportunities to file her appeal between 1 April 2017 and 22 April 2017. Instead, she waited for more than 4 years to lodge the appeal.  It therefore concluded that there was no special circumstance that would justify the applicant’s late filing and refused to allow the applicant’s late filing.  

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

16.The applicant has filed Form 86 dated 22 June 2022 for leave to apply for judicial review of the Board’s Decision.

17.In her affirmation in support of her application, the applicant said she was not satisfied with the Board’s Decision as there was no transparency in the Decision.

DISCUSSION

18.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

20.The issue before this Court is whether the Board was in error in refusing to extend time for the applicant to file her notice of appeal because of the delay.

21.It is apparent that the Board, pursuant to section 37ZT of the Ordinance, had considered the facts of her case.

22.Section 37ZT of the Ordinance has been amended and is operative on 1 August 2021. The new section reads:

“Late filing of notice of appeal

(1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)”

23.According to the Board, the applicant had been advised of the deadline for filing her notice of appeal, which is on or before 3 April 2017. The Board, having considered the evidence, found that the applicant should have had the opportunities to file her appeal between 1 April 2017 and 22 April 2017.  There is no evidence to show that the applicant had exercised all due diligence to file the notice of appeal on or before 3 April 2017. Nor is there any evidence to show that the applicant was unable to do so because of circumstances beyond her control. The Board is right to reject her late filing of the notice of appeal.

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

CONCLUSION

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

Dated the 25^th day of August 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