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

HCAL 864/2019

[2023] HKCFI 1506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 864 of 2019

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:

1.   Leave for the applicant to apply for Judicial Review of the Board’s Decision be granted; and

2.   The applicant has to take out the originating summons within 14 days after this decision in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing and her application is dealt with 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 4 March 2009 as a foreign domestic helper and was permitted to stay until 4 March 2011, or two weeks after termination of employment contract, whichever was earlier.  On 8 July 2009, her employment contract was prematurely terminated and she was required to leave on or before 22 July 2009.  She did not depart and had overstayed since 23 July 2009.  On 27 June 2011, she was arrested by the police.  On 9 August 2011, she raised a torture claim which was later treated as withdrawn because she failed to return the completed non-refoulement claim form.  On 30 October 2013, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her family members for (i) she changed faith from Islam to Christianity; (ii) her marriage with a non-Indonesian Christian; and (iii) she gave birth to a daughter.

5.In short, the applicant married her Nepalese husband in August 2009 and gave birth to a daughter in January 2011.  She resumed contact with her family members in mid-2015 and in mid-2016, informed them of their marriage.  While her mother responded “yes”, it was in a negative tone.  Thus, the applicant feared that they disapproved her marriage and would harm or even kill her. Meanwhile, she converted to Christianity in 2017 and she was afraid that the family members would disapprove her abandonment of Islam religion as well.  In this light, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 14 February 2018 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 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”);

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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) her credibility was in doubt [17]; (ii) no physical violence or threat was ever inflicted on her [18]; (iii) her claimed fear of harm was purely speculative [19]; (iv) state protection would be available to her [20]-[24]; and (v) internal relocation was a viable option [25]-[30]. 

The Board’s Decision

8.On 15 March 2018, the applicant sought to appeal against the Director’s Decision to the Board.  She was 9 days out of time [8].  Her explanation that her husband kept the mailbox key and she was negligent not to follow the track of the Board’s Decision was refused by the Board [10]-[18].  As a result, the Board refused to exercise its discretion to allow the applicant’s late filing of notice of appeal against the Director’s Decision.

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

9.The applicant has filed Form 86 dated 28 March 2019 for leave to apply for judicial review of the Board’s Decision.

10.In her affidavit in support of her application, the applicant said that she reiterated her reasons for coming to Hong Kong and the reasons for her failure of adhering to the deadline for filing her notice of appeal with the Board. She explained that she did not have legal advice and her family problem had caused depression to her.

DISCUSSION

11.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).

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

13.The issue before this Court is whether the Board was correct in refusing to extend time for the applicant to file her notice of appeal. This issue can be quickly disposed of because it is apparent that the Board had not considered the merits of the applicant’s case before it made its decision, contrary to the guideline of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019, in which it was held:

“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.In this case, the applicant was late for only 9 days. She had given her reason that her husband was keeping the mailbox key and she was negligent in not keeping track of the Board’s Decision. For such a short period of delay, it will be Wednesbury unreasonable for the Board to take the harsh line to reject her explanation outright without considering her situations and the merits of her case.

15.I understand that the section 37TZ of the Ordinance has been revised to the extent that for late filing of the notice of appeal, the Board only considers the reasons for the delay and it does not have to consider the merits of the applicant’s case. This revised version is operative on 1 August 2021 without retrospective effect. This case must be considered before the revised section 37TZ.

16.I therefore find that there is a reasonable prospect of success to challenge the Board’s Decision.

CONCLUSION

17.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant must issue the originating summons within 14 days after this Order in accordance with Order 53, rule 5 of the RHC.

Dated the 15^th day of June 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