Sukanti Bt Tasa Surnata v. Director of Immigration

HCAL 2266/2024

[2025] HKCFI 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2266 OF 2024

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 Bruno Chan:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Director of Immigration dated 18 December 2023 be refused; and

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

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 18 December 2023 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 44-year-old national of Indonesia who last arrived in Hong Kong on 19 February 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 December 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 20 March 2014, she did not depart and instead overstayed, and was arrested by police on 18 July 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her husband for failing to send him money for his use and/or by her creditor over her unpaid debts.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 28 September 2018 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951Convention relating to the Status of Refugees (“Persecution Risk”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband or creditor upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of either of them to seriously harm or kill her other than to press her for money, that in any event her problems with them were private monetary disputes only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for anyone to locate her.

5.The Applicant’s appeal against the Director’s decision was dismissed by the Board on 2 January 2020 after hearing her in evidence and submissions and upon finding no merits in her claim or appeal, and that it also confirmed the Director’s decision.

6.The Applicant’s late application for leave to apply for judicial review of the Board’s decision was also refused by this Court on 2 November 2023 upon finding no good reason for her delay, that none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 549/2020 [2023] HKCFI 2824).

Request To Make Subsequent Claim

7.The Applicant never sought any appeal against the Court’s decision, but on 14 September 2023 while being detained by the Immigration Department at Nei Kwu Correctional Institution pending deportation, the Applicant in writing to the Immigration Department requested to make a subsequent claim on the basis that she still fears being harmed or killed by her husband or creditor if refouled to Indonesia and that she wants to remain in Hong Kong.     

8.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4)If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5)  If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.Accordingly, the Director on 22 September 2023 required the Applicant to provide further information and evidence in writing in support of her request within 14 days, but which she subsequently never did so.     

10.By a Notice of Decision dated 18 December 2023 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim, and that she failed to provide any evidence in writing to satisfy an immigration officer that there has been any significant change of circumstances since her previous claim was determined, or that those changes when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success.

11.On 26 November 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for relief was given in her Form or supporting affirmation of the same date in which she just repeated her claim of fear of harm from her husband and creditor as before. 

12.By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the 3-month period for her to file her Form 86 fell on 18 March 2024, the Applicant was therefore more than 7 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration; AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and inordinate, for which she explained at the hearing of her application that being unrepresented she was not aware of the procedural requirement to file her leave application within 3 months until later but by then she was already out of time with her intended application.

15.The record shows that the Director’s decision was sent on the same day of 18 December 2023 to the Applicant’s then detention at Nei Kwu Correctional Institution without being returned through undelivered post, while ignorance of the law can never be accepted as any valid justification for their non-compliances, and the stationed welfare officers stationed to offer advice and assistance to her, I am not satisfied that the Applicant has provided any good or valid reason for her serious delay.          

16.As for the merits, if any, of her intended application, as noted above that the Applicant failed to put forth any proper ground for her intended challenge of the Director’s decision in her Form or affirmation, nor was she able to do so at the hearing of her application other than just repeating her claim of fear of harm from her husband and creditor as before.                         

17.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and as I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her serious delay, I refuse to extend time and accordingly dismiss her leave application.  

Dated the 11^th day of February 2025

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