Ani Sri Kurnianti v. Torture Claims Appeal Board

HCAL 177/2019

[2023] HKCFI 1806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 177 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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  Leave to apply for Judicial Review be granted; and

2.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Indonesia who raised a non-refoulement claim with the Immigration Department by way of a written representation dated 14 January 2014 that her life would be in danger if she were to be returned to Indonesia.  

2.For the commencement of the screening process of her non-refoulement claim, the Applicant attended a briefing by the Immigration Department on 20 May 2016 during which she was advised by an immigration officer assisted by an Indonesian interpreter of the relevant statutory requirements which she was to comply with in order to substantiate her claim under the Unified Screening Mechanism (“USM”) on all the applicable grounds, including the return of a completed Non-refoulement Claim Form (“NCF”) setting out all the relevant facts and information of her claim to the Immigration Department on or before 8 July 2016, and that she was also referred to the Duty Lawyer Service (“DLS”) for free legal representation for her claim.

3.On 24 June 2016 the Immigration Department were informed by the DLS that they did not have instruction to act for the Applicant for her claim.

4.Thereafter efforts by the Immigration Department to contact the Applicant via her mobile phone number and by a letter dated 30 June 2016 were all in vain, and as no completed NCF had been returned by the Applicant by 8 July 2016, the Director of Immigration (“Director”) by a letter dated 18 July 2016 informed the Applicant that her non-refoulement claim had been treated as so withdrawn under Section 37ZG (1) of the Immigration Ordinance, Cap 115.

5.Some 1 ½ years later on 8 February 2018, the Applicant in writing to the Director requested to re-open her claim, followed by 2 further letters dated 12 and 13 of February 2018 making the same request under Section 37ZG (3) of the Ordinance.

6.In pursuance of subsection (3) thereof, the Director by a letter dated 13 February 2018 required the Applicant to provide further information and evidence in writing on or before 20 February 2018 to satisfy an immigration officer that she had not been able to return her completed NCF as required due to circumstances beyond her control.

7.By a letter dated 15 February 2018 in English, the Applicant stated that she was unable to return a completed NCF as required because she lost all her documents, and that she had been detained at the Castle Peak Bay Immigration Centre (“CIC”) that she would not be able to provide any further information or evidence until after her release.                         

8.By a Notice of Decision dated 7 March 2018 the Director refused to allow the Applicant to re-open her non-refoulement claim upon finding that the loss of contacting means with the DLS or the Immigration Department would not be accepted as a valid reason for her failure to return a completed NCF as such information are freely available and can be readily acquired, and given that her letters of request were all written in English show that she was able to communicate in English that it was not acceptable that she had waited for so long to make her re-opening request, as the Director so stated in the decision at [12]:

“Your re-opening request of your non-refoulement claim has been duly considered on the grounds you have given. In your letter dated 15 February 2018, you attributed your failure to submit the completed NCF due to your loss of your documents. However, the loss of the contacting means with the DLS or the ImmD would not be accepted as a valid reason as it is commonly known and recognized that information (such as the address, telephone number, email address etc. of public organizations) is free to flow in Hong Kong and can be acquired readily if one has the real intention to do so. From your letters dated 8 February 2018, 12 February 2018, 13 February 2018 and 15 February 2018 written in English, you are able to communicate in written English. With such English proficiency, it is hard to understand why you would fail to re-establish contacts with the DLS or the ImmD in order to seek assistance to submit your completed NCF on or before the specified date in our letter of 30 June 2016 together with its Indonesian translation. It is further noted that the Notice of Deemed Withdrawal with its Indonesian translation was sent to you on 18 July 2016. These letters were sent to your last reported address and we have not received any information from you regarding the change of your residential or correspondence address. Besides, there has been a lapse of almost seven months when you made your re-opening request on 8 February 2018. Therefore, it is considered that the letters have been duly delivered to you and you had been given sufficient time and ample opportunities to contact us for assistance if you intended to do so but you never did.”

9.On 9 March 2018 the Applicant lodged an appeal from CIC to the Torture Claims Appeal Board (“Board”) against the Director’s decision, which the Board received on 12 March 2018, and in her Notice of Appeal the Applicant stated as follows (as translated):

“I would like to apologise for all the wrong and mistake that I have done in regards of losing the documentations of the Appeal/Petition, because I have lost the entire document of which I must submit it accordingly in timely manner. And I wanted to contact the immigration but I do not always have my mobile phone with me / and I always change my number, at first I have borrowed my friend’s mobile phone and I have told my friend that if the immigration called to please let me know but my friend had gone back to Indonesia and I was confused and as how to get the immigration number, and also I do not have any friend or neighbor who are willing to let me know how to do it, I have asked to one of my friends about the appeal but they all do not know.

I really am sorry because I am now in C.I.C. when I submitted the letter to USM, one of my friends who helped me to write the letter in English, I need your understanding Sir / Madam. I wish that Sir / Madam can give a chance to me to stay in Hong Kong because I am still traumatized to be returned to Indonesia. Please give me one more chance, I promise that I will give evidence that all my documentations were lost, I will tell everything, every time I change my mobile phone number and my correspondence address, My sincere apology and please understand.

Sir / Madam I am writing this letter in truth of my own free will without any inducement from anyone, once more Sir / Madam please give me one more chance to remain and stay in Hong Kong until my problem in Indonesia is solved.”    

10.The Board did not hold any oral hearing for the appeal, and proceeded to deal with it on paper, and on 25 October 2018 it dismissed the appeal and confirmed the Director’s decision.

11.In its decision the Board agreed with the Director that the Applicant’s reason of having lost all her documents and hence was unable to contact the DLS or the Immigration Department for assistance was not a good or valid reason for failing to return her completed NCF within the required time, as their addresses and telephone numbers are readily available  in Hong Kong irrespective of the person’s language and place of origin, and concluded that the Applicant had failed to provide sufficient evidence in writing to satisfy an immigration officer that she had not been able to submit the completed NCF as required due to circumstances beyond her control.    

12.On 18 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her subsequent written submissions she put forward the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board had lawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated with the lack of credible source of information had resulted in groundless speculations that it is safe for the Applicant to return to her home country;

(6) That it was procedurally unfair that the hearing bundle was not provided to the Applicant earlier with the majority of the documents in English but without translation that there was insufficient time for her to prepare for her appeal hearing before the Board due to her limited skills in English and could not afford to hire an interpreter to assist her for her appeal.       

13.Most of these grounds are however just some vague and bare assertions of the Applicant without any relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had actually erred in the decision, or in what way did the Board unlawfully fetter its discretion, or how the Adjudicator had acted in a procedurally unfair manner, or what COI were not officially recognized or were simply hearsay or outdated as clearly not relevant as the Board was clearly not determining her claim for non-refoulement protection but rather her application to re-open her claim.  The Applicant also subsequently failed to attend the scheduled hearing of her application without any explanation.

14.Nevertheless, given clearly the seriousness of the issue at hand and the implication of depriving the Applicant of any screening process of her non-refoulement claim under the USM in which her life and limbs were said to be at stake due to her failure to return a completed NCF within the required period, the Court will adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to accept her explanations for her such failure or to allow her to re-open her claim.

15.To start off, there is no question in my mind that to a non-refoulement claimant there is no document more important than a completed NCF in which the grounds of the claim and the facts in support are to be stated and accompanied by such other relevant information as is required by the Form so as to enable his claim to be properly screened and determined on all the applicable grounds under the USM, and for that matter it is in fact stipulated by Section 37ZA of the Ordinance that it is part of the duties of the claimant to do so in order to substantiate his claim.

16.As noted above, such importance of the NCF and the duty to return it as completed within the required period to the Immigration Department would then be driven into all such claimants as a matter of common practice during a briefing by an immigration officer with the assistance of an interpreter, and that a “Notice to Persons Making a Non-refoulement Claim” which sets out all the important rules and requirements with the relevant translations together with a blank NCF would be served on each claimant with a clear deadline to return its completed Form for the purpose of his claim, and to be followed up with a subsequent letter either to the claimant or his lawyer from DLS to remind him to do so, as was in the case of the Applicant. 

17.Henceforth a claimant who applies to re-open his claim after it has been treated as withdrawn due to failure to carry out the above mentioned duty, it is for the claimant to satisfy an immigration officer that it was due to circumstances beyond his control that he had not been able to return a completed NCF as required: Section 37ZG (3) of the Ordinance.

18.In most cases it would be a straight forward matter of finding of facts by the immigration officer, and on an appeal under Section 37ZR (a) by the Board, whose duty however is not to discharge an appellate role to see whether the claimant has any valid ground to challenge the decision of the immigration officer, but rather a rehearing of the matter determined by the immigration officer and to make its own findings and determination of the application before it: see AM v Director of Immigration [2014] 1 HKC 416.

19.In this respect, in making its own factual findings and determination, and given the serious implication that the Board is to have the final say in denying the claimant of any screening of his claim under the USM on all the applicable grounds, the principle of applying high standards of fairness in the determination of non-refoulement claims established by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, and as set out in the Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”) for adjudicators is equally applicable to the Board’s determination of an application to re-open a claim after it has been treated as withdrawn by the Director.  

20.In applying high standards of fairness in its determination of such an application, the following observations of the Court of Final Appeal in Prabakar should be of assistance to the Board:

“53. … Firstly, the difficulties of proof faced by persons in this situation should be appreciated. The person concerned may have fled from the country concerned with few belongings and documents and his level of education may be relatively low. The situation is analogous to that of persons seeking refugee status under the refugee Convention. And the guidance provided by UNHCR in its Handbook for the determination of refugee status provides a useful reference for dealing with claims relating to torture.

54. Secondly, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim. It may be appropriate for the Secretary to draw attention to matters that obviously require clarification or elaboration so that they can be addressed by the person concerned …

55. Thirdly, an understanding of country conditions at the time of the alleged torture in the past as well as at the present time is usually relevant to the assessment of the claim …”  

21.In accepting that the UNHCR Handbook mentioned above would provide a useful guidance, the Court of Final Appeal also emphasized at [21]:

“UNHCR has published a Handbook on Procedures and Criteria for Determining Refugee Status (1979, re-edited 1992). It provides guidance to Contracting States and would no doubt be followed by UNHCR itself in conducting refugee status determination. It states that the relevant facts will have to be furnished in the first place by the applicant himself. The examiner, that is, the person charged with determining his status, will then have to assess the validity of any evidence and the credibility of the applicant’s statements. The Handbook recognizes the principle that the burden of proof lies on the person submitting a claim. But it notes that often, the applicant, as a person fleeing from persecution, may have arrived with the barest necessities, even without personal documents. So he may not be able to support his statements by documentary or other proof. The Handbook states that, while the applicant has the burden of proof, the duty to ascertain and evaluate all relevant facts is shared between the applicant and examiner. In appropriate cases, such as where statements are not susceptible of proof, if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt: see paras. 195 and 196 of the Handbook.”

22.With these principles in mind, I shall now move to consider the Board’s determination and reasons to refuse the Applicant’s application to re-open her claim as stated in its decision:

“18. Having carefully considered all the relevant issues in this appeal, I decline to allow the Appellant to re-open her non-refoulement claim application. The Appellant failed to return a completed NCF resulting in her claim being deemed withdrawn under Section 37ZG(1) of the Ordinance on 9 July 2016. She then applied to re-open her non-refoulement claim by letters respectively dated 8 February 2018, 12 February 2018, and 13 February 2018. On 13 February 2018, the Director requested the Appellant to provide sufficient evidence in writing on or before 20 February 2018 to satisfy an immigration officer that the reason she had not been able to return the completed NCF as required was due to circumstances beyond her control. The Appellant by letter dated 15 February 2018 stated her reason that she had lost her documents, and therefore was not able to contact the DLS or the Immigration Department for assistance. The Appellant’s reason that she had lost all her documents and was therefore unable to contact the DLS or the Immigration Department for assistance was not a good and valid reason to show that she did not return a completed NCF within the time limit due to circumstances beyond her control. The addresses and telephone numbers of the DLS and the Immigration Department are readily available to any one who wanted to seek them. This is the case in Hong Kong irrespective of the person’s language and place of origin. The Appellant had therefore failed to provide sufficient evidence in writing to satisfy an immigration officer that she had not been able to submit the completed NCF as required due to circumstances beyond her control. It was under these circumstances that the Director refused the Appellant’s application to re-open her non-refoulement claim.

19. Section 37ZG(3) provides that:

‘A torture claim treated as withdrawn under subsection (1) may be re-opened if …’

20. The Appellant had not provided sufficient evidence in writing to support her application to re-open her non-refoulement claim under Section 37ZG(3) of the Ordinance. Under the circumstances, the Director was justified to refuse the Appellant’s application to re-open her non-refoulement claim.

21. The Appellant’s appeal is accordingly dismissed and the Director’s Decision dated 7 March 2018 is affirmed.”          

23.From the above, the Board appears to have assumed the appellate role in dismissing the Applicant’s appeal and in agreeing with the Director’s decision by mainly repeating the findings of the immigration officer of the availability of contacting means of the DLS and the Immigration Department and the Applicant’s ability to communicate in English to reject her application to re-open her non-refoulement claim without making its own findings and determination of the application by way of a re-hearing.

24.In this regard, it is of note that the Board did not disbelieve the Applicant’s explanation for not returning her completed NCF as required because she had lost all her documents, but rather it agreed with the Director that the Applicant could have come to the DLS or the Immigration Department much sooner for assistance given that information regarding DLS and the Immigration Department are readily available to anyone irrespective of his language or place of origin, which seems to me an assumption or speculation made without sufficient regard to the Applicant or her circumstances.

25.For the fact that no completed NCF had been returned by her, there was therefore no information at all before the Board, and for that matter the Director, about the Applicant such as her background or education or occupation other than that she was born in 1982 and was from Indonesia, it seems to me that there was therefore no proper basis for the Director to state that the Applicant is able to communicate in English and therefore should have sought assistance much sooner simply because her letters of request to re-open her claim were written in English without any consideration of the possibility that she might have had help from others some 1 ½ years thereafter, as she had so stated in her Notice of Appeal to the Board.

26.Hence it seems to me that high standards of fairness would have required the Director and the Board in dealing with the Applicant’s request to re-open her claim some 1 ½ years later from her detention at CIC to ascertain from the Applicant what had happened to her between June 2016 when she could not be contacted and February 2018 when she made her request from CIC, or at least to enquire since when had she been detained at CIC before proceeding to determine whether or not there were indeed circumstances that were beyond her control that she had not been able to return her completed NCF as required.

27.While it is by now commonly accepted that a great number of non-refoulement claimants that have come to the courts to challenge the decisions of the Director or the Board were in fact not genuine asylum seekers and have used all sort of abuses to delay their removal from Hong Kong, of which I have seen my fair share in my court, in dealing with an application such as by the Applicant for re-opening her claim because she had earlier failed to return her NCF, it would be helpful for the Adjudicator, and for that matter the immigration officer, to first ask this question: Why would a non-refoulement claimant, genuine or otherwise, not return a completed NCF as required, well knowing that it is the most important document to enable him or her to remain in Hong Kong while proceeding with the claim, a process by now also commonly known would take months if not years to complete, rather than to risk that the claim being treated as withdrawn at the expiration of 28 days as statutorily required, and that thereafter the claimant be removed from Hong Kong?

28.There could of course be all sort of reasons for such failure, and whether they amount to circumstances beyond the person’s control is a question of fact to be determined by the Director and the Board with objectivity and impartiality, and without any own intuitions, speculations or assumptions.

29.As stipulated by UNHCR in its Asylum Procedures Directive (“APD”), in assessing the credibility of a claim for international protection, decision-makers are required to ensure that the applications be examined and decisions taken objectively and impartially, and that such requirement of objectivity and impartiality applies throughout the procedure, including the process of both gathering and assessing evidence, and it also applies to the examination of all applications regardless of the applicant’s identity, background, or circumstances (Article 8(2)(a) of APD).

30.This requirement is in fact reflected in the national legislation and guidance of EU Member States, such as in the UK guidance, UKBA, Asylum Instructions, Considering Asylum Claims and Assessing Credibility, February 2012 where it stated at p.12:

“Assessing the credibility of a claim is not about making negative credibility findings and focusing on refusal. It is an objective assessment of the material facts that go to the core of the claim […]. The guidance adds: ‘It should be a neutral assessment of the material facts […] in which subjectivity should be kept to a minimum.”

31.The importance of such requirement is further elaborated in the UNHCR Beyond Proof – Credibility Assessment in EU Asylum Systems, May 2013 at p.38:

“The requirement of impartiality and objectivity applies regardless of the circumstances of the case. As stated in the UNHCR Handbook, the decision-maker must conduct the fact-finding process ‘in a spirit of justice and understanding and his judgment should not, of course, be influenced by the personal consideration that the applicant may be an ‘underserving case’.

It is, therefore, critical that decision-makers do not prejudge credibility and do not approach the task with skepticism or a ‘refusal mind-set’. This may prejudice and distort the process of both gathering information and assessing the applicant’s statements and other evidence, thereby violating the requirement of impartiality.

The examiner(s) must, therefore, start out with maintaining and being seen to maintain an open mind throughout the procedure. This is particularly salient when only one case worker handles an application, and none or only limited review or quality checks are carried out on decisions to reject claims for protection, in particular the basis for the findings of fact upon which decisions are made. In some Member States, the decisions to grant international protection may require peer review by a senior colleague, decisions to reject an application may be taken by the one case worker without any peer review.

…

It is, therefore, vital that decision-makers recall that their task is to uphold fundamental human rights and identify applicants who qualify for international protection. Furthermore, it is crucial that determining authorities take appropriate steps, as necessary, to ensure an institutional mind-set that is protection-oriented and an institutional culture that is ‘protection-sensitive’.”               

32.In particularly, it is emphasized that the credibility assessment should be based on the available relevant evidence only and not on the decision-maker’s own intuitions speculations or assumptions which violate the principle of objectivity, as it explained at p.39:

“… examiners need to be aware that their perception of the applicant and his or her application should not be negatively influenced by issues that are not pertinent to the material facts of the application …

The credibility assessment should be based on the available relevant evidence and not on the decision-maker’s intuition or gut feeling. Speculative argument that fails to rely on objective and reliable sources of information and that reflects the decision-maker’s own theory about how the applicant or others could or should have acted, or about how certain events could or should have unfolded, violates the principle of objectivity. As expressed in the Australian guidance: ‘What is capable of being believed is not to be determined according to the Member’s subjective belief or gut feeling about whether an applicant is telling the truth or not. A Member should focus on what is objectively or reasonably believable in the circumstances.’

Assessing credibility, therefore requires decision-makers not just to assess the statements and other evidence applicants present, but also to be aware of the extent to which their own emotional and physical state, values, views, prejudice, and life experiences may influence the objectivity and impartiality of their decision-making. This will enable them to minimize subjectivity and partiality.”           

33.It is of course well acknowledged of the challenge of the credibility assessment in the asylum procedures, as decision-makers have to decide under conditions of uncertainty in the asylum system, which is further compounded by the geographical and cultural distance between the country of origin in which the alleged facts occurred and the country in which the application for international protection is examined, as well as the amount of time that has elapsed between these facts and the hearing of the case.

34.Such challenges were in fact emphasized by Lord Justice Keene of the UK Court of Appeal in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223, 26 July 2006 at para. 25:

“An English judge may have, or think that he has, a shrewd idea of how a Lloyd Broker or a Bristol wholesaler, or a Norfolk farmer, might react in some situation which is canvassed in the course of a case but he may, and I think should, feel very much more uncertain about the reactions of a Nigerian merchant, or an Indian ship’s engineer, or a Yugoslav banker. Or even, to take a more homely example, a Sikh shopkeeper trading in Bradford. No judge worth his salt could possibly assume that man of different nationalities, educations, trades, experience, creeds and temperaments would act as he might think he would have done or even – why may be quite different – in accordance with his concept of what a reasonable man would have done.”

35.In the present case of the Applicant, for the reasons given, it is in my view reasonably arguable that the Board in refusing her application to re-open her claim (i) failed to make its own findings and/or determination by just accepting and agreeing with the Director’s decision; and/or (ii) in rejecting the Applicant’s explanation of not being able to contact the DLS or the Immigration Department for assistance after losing all her documents as not a good or valid reason for not returning her NCF because the addresses and telephone numbers of DLS and the Immigration Department are readily available to anyone in Hong Kong irrespective of the person’s language or place of origin was based on its own intuitions speculations or assumptions rather than on proper evidential basis, and thus meeting the threshold for leave to be granted for judicial review as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

36.In the premises, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the grounds stated above, and according direct that she shall file and issue her originating summons within 14 days of the decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 12^th day of July 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