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

HCAL 2240/2019

[2023] HKCFI 2802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2240 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 notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 6 August 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) “dismissed [her] appeal by [the Board], dismissed [her] petition seeking judicial review, 11 December 2011”.

2.Enquiries with the authorities revealed that the Applicant made a claim for protection (the “Torture Claim” under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Convention”) by letter dated 29 October 2008.  It was refused by the Director of Immigration (the “Director”) by his Notice of Determination dated 7 March 2012 (the “2012 Notice”).  She appealed the Notice.  Her appeal was dismissed by the decision of the Board dated 30 April 2012 (the “2012 Decision”).  Then, the Applicant made a non-refoulement claim under the Unified Screening Mechanism (“USM”) in 2019.  Her claim was also refused by the Director under the three remaining applicable grounds under the USM by his Notice of Decision dated 20 September 2019 (the “2019 Notice”).  Her appeal against the 2019 Notice was dismissed by the Board by its decision dated 24 January 2020 (the “2020 Decision”). Thus, neither the Director nor the Board had made any decision in respect of the Applicant dated 11 December 2011.  The only decision against which the Applicant may seek judicial review at the time of filing the Form 86 is the Board’s 2012 Decision.  The Board’s 2020 Decision was not in existence at that time.  Against this procedural background, despite the ambiguity caused by her broken English in the Form 86 it is clear that the Applicant’s intention at the time she filed the leave application was to seek leave to apply for judicial review of the 2012 Decision dismissing her appeal against the Director’s 2012 Notice refusing her Torture Claim.  Leave is therefore granted to amend the Form 86 to give effect to that intention.

3.The leave application was filed more than seven years and three months after the date of the 2012 Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the application was more than seven years out of time.  In AW and Director of Immigration and William Lam[1], 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.  Merits is usually a very important factor.  Where the delay is not very substantial, merits is usually the determinant factor.  But where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”: see Po Fun Chan v Winnie Cheung[2] per Litton PJ.  The delay in this case is so substantial that leave may be refused on this ground alone, if there is no reasonable explanation for the delay.  The Applicant has not given any explanation for the delay.  The high standard of fairness would require the Court to invite her for an explanation.  However, for expediency reasons, the Court proceeds to assess the prospect of success in the proposed judicial review and if there is good prospect it will then investigate the explanation for the delay.

4.The Applicant had not requested an oral hearing.  Having considered the nature of the application and issues raised, the 2012 Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing.  

5.The Applicant is an Indonesian national, now aged 40.   She first started working as a foreign domestic helper in Hong Kong in May 2002.  She successively completed three contracts of employment by 2 February 2008.  In accordance with the usual rules, she was required to leave Hong Kong.  She left, travelling between Hong Kong and the Mainland on a number of trips until her last arrival in Hong Kong on 20 March 2008 when she was permitted to stay until 22 March 2008.  She overstayed and was arrested on 20 October 2008.  On 29 October 2008, she raised a Torture Claim which was rejected by the Director’s 2012 Notice.  Her appeal against the 2012 Notice was dismissed by the Board’s 2012 Decision.   She now seeks leave to judicially review the 2012 Decision. 

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in the petition, the questionnaire and accompanying documents, the record of her screening interview in the presence of her lawyer and supplemental petition lodged by the Duty Lawyer Scheme on her behalf.    The Applicant claims that she will be ill-treated by her adoptive parents, if refouled.  Her fear originates from the consistent abuse and threats of harm from her adoptive parents since childhood and her current inability to satisfy their financial demand. 

7.The Applicant was born in East of Java, Indonesia.  She was abandoned by her own natural parents at the age five and picked up by an old woman (her adoptive grandmother) and brought up by the adoptive parents who are the daughter and son-in law of that old woman.  The adoptive parents have two daughters of their own.  They treated the Applicant unkindly, making her sleep on the floor and requiring her to do housework.  At the age of 11 or 12, she was required to do odd jobs for other villagers after school to make money to support the family.  She was not allowed to go to senior high school.  She suffered assaults such as having her hair pulled and her ears pinched.  Once, when she was 14 and was unable to work because she was not feeling well, her adoptive mother beat her with broomsticks resulting in a scar.  When she was 16, she was sent to work in a garment factory to make money for the adoptive parents.  In 2002, when she was 19, her adoptive parents arranged for her to work as a domestic helper in Hong Kong.  The Applicant had to send most of her earnings to her adoptive parents.  That continued until 2008 when her last contract was terminated.

8.Sometime afterwards, her adoptive mother asked the Applicant to help her repay a loan of 30 million rupiahs (about HK$25,000) which she owed to a loan shark.  The Applicant replied that she was unable to because she was no longer employed.  Her adoptive mother responded that she would not let the Applicant live in her home if she returned to Indonesia.  The Applicant claims she had nowhere to live if returned to Indonesia.  She also makes the point that the police would not protect her Indonesia.

The finding of the Board

9.The Board assessed the Applicant’s claim on the basis of the case as she asserted.  It considered that she had been treated appallingly by her adoptive parents.  However, the treatment did not amount to ‘torture’ within the meaning of the CAT Convention.  Under Article 1 of the CAT Convention, ‘torture’ is defined as:

“… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” (emphasis added)

The Board held there is not the slightest suggestion that what has happened to the Applicant has been instigated by or has had the consent or acquiescence of a public official or anyone acting in an official capacity.  It also held that the Applicant’s belief that the police would have done nothing if she had reported her adoptive parents to them does not mean that the police have acquiesced in the adoptive parents’ conduct towards her.

10.The Board also held that there is no risk of such past treatment being repeated on the Applicant because her adoptive mother had made it clear that the Applicant is no longer welcome in her home.  There will be no chance that whatever may have happened in the past will be repeated if the Applicant returns to Indonesia because she will not live with her adoptive mother.

11.In conclusion, the Board held that the fact relied on by the Applicant falls far short of supporting her claim that there is any risk of torture to her within the meaning of the CAT Convention if she returns to Indonesia.  Hence, it dismissed her appeal.

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[3].  

Grounds for judicial review

13.The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she said she could not go back to her home country because her life is still in danger there.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

Discussion

14.Having rigorously examined the 2012 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 Torture Claim under the CAT Convention; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted.  It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, the ill-treatment does not amount to ‘torture’ within the meaning of the CAT Convention.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under the CAT Convention.  These are finding of facts and of law.  Insofar as it is a finding of fact, it is exclusively 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.  Insofar as it is finding of the law, it is absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The 2012 Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

15.As the leave application has no prospect of success, no extension of time will be granted for filing the leave application.  It will be futile to enquire from the Applicant about the reasons for the delay.  For reasons as already explained, leave is granted to amend the leave application by naming the 2012 Decision as the decision in respect of which relief is sought; but the leave application as amended is refused.

Dated 27^th day of October 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