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

HCAL 3581/2019

[2023] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3581 of 2019

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:

1.   Leave to amend the parties named in the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.   Extension of time to apply for leave to apply for Judicial Review be refused; and

3.   The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 2 December 2019 for leave to apply for judicial review.  She named herself as the applicant and also the respondent; and the Torture Claims Appeal Board / the Non-refoulement Claims Petition Office (the Board”) as the interested party.  Having regard to the circumstances as revealed by the available documents, properly understood, this application is intended by the Applicant to be an application for leave to apply for judicial review (the “leave application”) of the decision of the Board dated 17 April 2019 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notices of Decision dated 7 August 2018 (the “Notice”) rejecting her claim for non-refoulement protection.  Accordingly, leave is granted to amend the parties named in the Form 86 to give effect to that intention.

2.The Applicant is an Indonesian, now aged 39.  She had worked as a foreign domestic helper in Hong Kong since 2013 until her employment was prematurely terminated on 18 January 2015.  Then she went to work in Macau as a waitress for six months and returned to Hong Kong on 7 August 2015 as a visitor.  She overstayed since 7 September 2015. She was arrested for overstaying on 27 October 2015.  On 4 November 2015, she lodged her claim for non-refoulement protection by way of written representation to the Director.

3.Subsequently, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. By a Notice of Decision dated 7 August 2018, the Director rejected her claims under all four applicable grounds.  She appealed to the Board against the Notice. Since about two weeks before the hearing the secretariat of the Board had been trying to contact her on the telephone, but could not reach her on the telephone number she provided as there was no service.  The secretariat also could not reach her on the telephone number she provided to the Immigration Department because the number was temporarily unavailable.  According to the Immigration Department, the Applicant was an absconder but the hearing bundle had been duly served on her by registered post.  The Applicant did not attend the appeal hearing.  The secretariat wrote to her inviting her to explain her absence and informed her that if no explanation was received within the seven-day statutory period, a decision will be made.  Again, she did not respond.  By its Decision dated 17 April 2019, the Board dismissed her appeal.

4.Six months later, ie on 21 and 24 October 2019, the Applicant made a request to the Director for leave to make a subsequent claim pursuant to section 37ZO of the Immigration Ordinance.  On 2 December 2019, she filed the present leave application.  Nine days later, ie on 11 December 2019, the Director refused her request.  As at the date of hearing, she has not sought leave to apply for judicial review of the Director’s refusal of her request.

5.This leave application was filed more than seven and half months after the date of the Decision sought to be reviewed.  In accordance with section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it was made more than four and half months out of time.  Her application is deemed to include an application for leave to apply out of time.

6.In AW and Director of Immigration and William Lam^[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Though the delay of four months is substantial, it nevertheless is not the type of case which the Court will lightly dismiss without considering merit which usually is the single most determinant factor in an application for leave to apply out of time.

The Applicant’s case

7.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance.  In summary, the Applicant claims that she would be harmed or killed by her stepmother and brother for failing to give them money and by a moneylender (the “moneylender”) for failing to repay an outstanding loan borrowed by her stepmother in her name.

8.The Applicant was born in Jakarta, Indonesia. She is single.  She had twelve years of formal education and had worked for three years as a domestic helper in Singapore before coming to Hong Kong.  When she was 23 years old, her mother died.  Her father married her stepmother in the following year.

9.The Applicant came to Hong Kong work as a foreign domestic helper in July 2013.  She returned to Indonesia after working for almost a year in Hong Kong.  For the next two months, she worked in a local factory earning about 150,000 Indonesian rupiah (about HK$80) per week.  She gave all her earnings to her stepmother.  But her stepmother demanded more money and beat her with a broom stick.  Her brother is a drug addict and beat her when he was under the influence of drug.  She suffered bruises over her body.  Her father would not allow her to seek police assistance.  She came to work in Hong Kong again in July 2014.  She last contacted her father by telephone in August 2014.  Her father asked her for money.  So she changed her telephone number.  Thereafter, she lost contact with her father, stepmother and brother.

10.The Applicant also alleged that unknown to her, her stepmother had used her name to take out a loan.  She had no knowledge of the particulars of the loan or the moneylender.  She said that the moneylender and three of his men had threatened to kill her if she was unable to repay them.  They threw items in her home, but did not physically assault her.  She did not report the incident to the police because her stepmother did not allow her to and she believed the police were corrupt and would not assist her without being paid a bribe.  She had never heard about any assistance having been provided by government to women encountering similar problems as hers.  She does not think internal relocation feasible because she did not have enough money, and she believes the moneylender can easily find her anywhere in Indonesia.

The finding of the Board

11.The Board considered the materials available was inadequate and it was necessary to make further enquiries from the Applicant to clarify various matters in order to properly establish the facts of her claim, such as her employment in the factory, her relationship with her stepmother, the bond they had before her stepmother became violent, whether she had told her father about the violence, what her father did to stop the violence, how she learned about the loan, when she found out about the loan, how much was borrowed, the identity of the moneylender, how it was possible for her stepmother to borrow in her name, whether the moneylender had told her how much she owed and when she was required to repay, etc.  With the Applicant’s failure to attend the hearing and to respond to the Board’s invitation for explanation, the Board was unable to satisfy itself that the Applicant had established any of the facts she asserted to support her claim for non-refoulement protection. In particular, the Board was not satisfied that the Applicant had discharged the burden of proving that upon her return to Indonesia she will be at any real risk of being subjected to any ill-treatment which the four applicable grounds under the USM protect against.  Accordingly, Board dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

12.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  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[6].

Grounds for judicial review

13.The Applicant did not put forward any grounds of application in her Form 86.  In her supporting affirmation, she said she could not return to Indonesia and repeated the gist of her claim, ie the violence from her stepmother and brother and the threat from the moneylender.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to discharge the burden of proving her entitlement to protection under any of the four grounds under the USM.  By reason of the legal principle as explained in the above paragraph, this is not permissible in an application for judicial review.

14.The above legal principle was explained to the Applicant at the hearing.  Attempt was made to solicit from her possible criticisms of the Decision on the basis errors of law, procedural unfairness or irrationality. All that she could offer was to repeat her claim that she could not return to Indonesia because of the threat from the moneylender, that she wanted to stay in Hong Kong, and in particular for the purpose of undergoing an operation on her hand.  For the same reason as mentioned above, these are not valid grounds for challenging a decision by way of judicial review.  Also, her medical needs is not a reason for granting non-refoulement protection.  In the absence of specific grounds or grounds with sufficient particulars, in an application for leave to apply for judicial review the Court would focus its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality in the Decision.

Discussion

15.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board found the information provided by the Applicant lacking in particulars and could not constitute sufficient evidence to support her claim for non-refoulement protection.  That is a finding of fact within the province of the Board which the Board is entitled to make on the basis of the inadequacy of the evidence.

16.The Board found it necessary to make further inquiries from the Applicant to solicit from her information and evidence to support her claim. For that purpose, it scheduled a hearing and attempted to contact the Applicant two weeks before the hearing. The telephone number she gave to the Board in her Notice of Appeal and the number she gave to the Immigration Department were not operative.  She had been duly served the notice of hearing.  She had received the hearing bundle which was served on her by registered mail.  That indicates she could be reached on the address she provided and probably had received the notice of hearing.  She did not attend the hearing.  She had been invited to explain her absence.  She did not respond.  The Board had done all it could to discharge its duty of joint endeavor in assisting the Applicant to establish her case.  Even as of now, non-receipt of the notice of hearing of the appeal has never been raised as an explanation for her absence or a reason for applying for judicial review.  The Board had acted with un-reproachable fairness.  The Applicant’s conduct reflects a lack of will to prosecute her claim which in turn reflects a lack of merit in her application.  She bears the burden of proving her entitlement to protection.  On the limited or inadequate evidence available, the Board could not be satisfied that she had discharged her burden of proving the factual basis in support of her claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely 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.  The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Hence extension of time for filing the Form 86 was refused. The application for leave to apply for judicial review was refused.

Conclusion

17.For the above reasons, no extension of time was granted for filing the Form 86 and the application for leave to apply for judicial review was dismissed.

Dated 6^th day of February 2023

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] 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

[2] 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”)

[3] 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

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

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

[6] [2018] HKCA 524 at [14(1)]