Dwi Aprilia Ningsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1348/2023

[2024] HKCFI 281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1348 of 2023

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 must take out the originating summons for the application for judicial review of the Board’s Decision within 14 days after service of this Order 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 3 July 2023 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”), her application is dealt with on paper.

The applicant

3.The applicant is a national of Indonesia. She entered Hong Kong on 23 November 2016 to be employed as a domestic helper but her contract was prematurely terminated on 10 June 2018. She did not depart and became an overstayer. She was arrested by the police nearly half a decade later on 11 January 2023 and charged with breach of condition of stay, for which she was subsequently sentenced to 16 weeks’ imprisonment on 14 January 2023. On 31 January and 13 February 2023, she made a non-refoulement claim on the basis she would be harmed or killed by her paternal uncle (Saji) as she refused to marry his creditor.

4.According to the applicant, Saji had borrowed money in order to defray her paternal grandmother’s medical expenses as she was of old age. As the applicant was in Taiwan working at the material time, she was not aware of the terms of the loan nor the name of the creditor (other than he lived in the same home village). When her grandmother died in 2015 due to illness, she returned to Indonesia for funeral arrangements and received a telephone call from Saji, informing her that he was unable to repay the loan. He therefore requested her to marry the creditor in order to set-off the loan. In order to delay the matter, she told Saji she would consider it and returned to work in Taiwan. However, some time in November 2016, Saji called her and threatened to harm or even kill her if she did not return to Indonesia to marry the creditor. As the applicant was already set to be employed in Hong Kong, she disregarded Saji’s request and continued her work in Hong Kong. Through her elder sister, she was informed that Saji is still seeking her whereabouts and repeated his demand for her to marry the creditor. In the circumstances, the applicant feels her life will be threatened if she is refouled to Indonesia. Details of her claim are set out at [6] of the Notice of Decision dated 4 April 2023 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the past events indicated that the claimed risk of harm from Saji was low as his threats were to pressure her into repaying the creditor and not to cause her harm [11]; (ii) her conduct was inconsistent with someone seeking asylum as she waited nearly five years before applying for non-refoulement protection in 2023 [12]; (iii) state protection would be available to her [14] – [20]; and (iv) internal relocation was a viable option [21] and [22].

The Board’s Decision

7.On 3 May 2023, the applicant appealed the Director’s Decision to the Board. She was out of time for eight days pursuant to section 37ZS(1) of the Immigration Ordinance.[1] The Board therefore proceeded to consider whether time extension ought to be granted under section 37ZT of the Immigration Ordinance.

8.Having considered the circumstances and the explanation given by the applicant, the Board found the delay to be unjustified. In particular, her contention that due to her detainment by the Immigration Department, she only had limited resources was not accepted by the Board [6] and [7]. It further noted her letter dated 15 June 2023[2] attempting to justify the delay by stating she had sought assistance from lawyers on 11 April 2023. However, the Board found this would be implausible as lawyers would not delay the lodging of her appeal after the expiry of the stipulated deadline [8]. The Board was of the view that the applicant had failed to explained the delay of 8 days for filing her notice of appeal.

9.In light of the above, the Board refused to grant time extension for the applicant to file the notice of appeal to challenge the Director’s Decision.

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

10.The applicant has filed Form 86 dated 3 August 2023 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has, in her affirmation in support of her application, not raised any specific ground.

DISCUSSION

12.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).

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

14.The issue for this Court is whether the Board is correct to refuse filing of the notice of appeal by the applicant because of 8 days’ delay.

15.Section 37ZT of the Ordinance was revised and became operative on 1 August 2021. It 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)”

16.The factual scenarios of the case, as according to the Board’s Decision, are these:

(1)  the Director’s Decision is dated 4 April 2023 [2];

(2)  the applicant filed her notice of appeal on 3 May 2023, a delay of 8 days [2];

(3)  the applicant received the Director’s Decision on 11 April 2023 [5];

(4)  the deadline for the applicant to file the notice of appeal is 25 April 2023 [5];

(5)  in part 5 of the notice of appeal, the applicant wrote that she was being detained by the Immigration Department and she asked for permission to file her notice of appeal out of time as there was limited of resources in the detention centre [6];

(6)  there was a letter from the applicant (the date of it might be in error) that she had on 11 April 2023 given her notice of appeal to her own private lawyer [8].

17.Section 37ZT (3) requires the applicant to submit evidence in writing to the Board that the applicant

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

(b)  failed to file the notice within the period because of circumstances beyond her control.

18.The Board did not dispute that the applicant was being detained by the Immigration Department at the relevant time. Nor did it dispute that the applicant only had limited resources for her to file her notice of appeal. Having taken into account that the applicant might require translation service for her notice of appeal, the Board said that the applicant still had 14 days to file her notice of appeal and she should race with time to file her notice of appeal. The Board did not believe that she had given her notice of appeal to her lawyer because if she had done so, there was simply no reason for her lawyer to delay the filing of the notice of appeal. Those are the reasons that the Board relied upon to refuse to extend time for the applicant to file her notice of appeal.

19.The Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, C.J. Li, Mr Justice Bokhary PJ, Mr Jistice Chan PJ, Mr Ribeiro PJ and Lord Millet NPJ, 8 June 2004 held:

“5. The determination by the Secretary, in accordance with the policy, of a potential deportee’s claim that he would be in danger of being subjected to torture if deported to the country concerned must be made fairly. If not, the Secretary would have acted unlawfully. This is not disputed by the Secretary.

44. …To him, life and limb are in jeopardy and his fundamental human right not be subjected to torture is involved. Accordingly, high standards of fairness must be demanded in the making of such a determination.

45. …the courts will on judicial review subject the Secretary’s determination to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met. R v Home Secretary, Ex parte Bugdaycay I[1987] 1 AC 514 at 531 E-G. If the courts decide that they have not been, the determination will be held to have been made unlawfully.”

20.The applicant had, in section 5 of the notice of appeal dated 9 April 2023, explained that she was being detained by the Immigration Department and there were limited resources for her to prepare her notice of appeal. The period of 14 days is provided for normal cases where the applicant has access to all available facilities, including legal aid, for the preparation of the notice of appeal. It seems clear that the Board had not taken this factor into account when assessing the circumstances beyond the applicant’s control. There was no inquiry by the Board as to the time required for the arrangement of translation service by the Immigration Department for the applicant.

21.The Board did not believe that the applicant had passed her notice of appeal to her private lawyer because it did not believe her lawyer would delay filing the notice of appeal. This conclusion is only speculation without any inquiry as to whether the applicant had instructed a lawyer and whether the notice of appeal was file by her lawyer; and if so, the reason for such late filing. If it was her lawyer’s fault in the late filing, this is beyond the applicant’s power and the Board should consider extending time for her to file her notice of appeal under the circumstances.

22.There is no answer to the questions above. Subjecting the Board’s Decision to rigorous examination and anxious scrutiny as directed by the Court of Final Appeal, I find that the Board had failed to apply the high standards of fairness in making its decision as to whether time should be extended to allow the applicant to file her notice of appeal out of time of 8 days.

23.The applicant therefore succeeds to show that there is realistic prospect of success in her intended applicant for judicial review of the Board’s Decision.

CONCLUSION

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

Dated the 8^th day of February 2024

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