HARIATININGSIH v. TORTURE CLAIMS APPEAL BOARD

HCAL 1348/2018

[2021] HKCFI 1194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1348 of 2018

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 29 August 2016 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of Indonesia who last arrived in Hong Kong on 29 April 2010 with permission to work as a foreign domestic helper until the expiration of her employment contract on 29 April 2012 or within 14 days of its early termination, but when her contract was prematurely terminated on 2 August 2010, she did not depart and instead overstayed, and was arrested by police on 10 March 2013 for which she was subsequently convicted and sentenced to prison for 12 months. After her discharge and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her abusive husband and/or his creditor for failing to assist him in repaying his loan. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Jember, East Java, Indonesia. After leaving school she married her husband and raised a family of 2 children.

3.  Soon after marriage the Applicant found her husband indulging in drinking instead of working and would become abusive to her when drunk, and so to avoid his abuses and to earn money to help support the family, she came to Hong Kong in 1999 to work as a foreign domestic helper by remitting money to her husband for the family.

4.  Over the years while she was working in Hong Kong, she heard from her father that her husband had been spending her remittances and borrowing loans for his gambling, and over which she had a heated argument with her husband in 2006 and thereafter she ceased remitting any money to him, and as a result he had threatened to kill her upon her return to Indonesia, and so when her last employment contract was terminated in 2010, she did not return to Indonesia for fear of harm from her husband or his creditor, and instead overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 July 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 24 August 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”) (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.  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 his 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 evidence at all of any threats being made against her by her husband’s creditor at all material time, that her problem with her husband was a private domestic dispute between them 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 255 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her husband or his creditor to locate her.

7.  On 23 September 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as she was then outside the 14-day period with the filing of her notice of appeal required by section 37ZS of the Ordinance, the Board proceeded to determine as a preliminary decision without a hearing whether to allow the late filing of her notice of appeal, and by a decision dated 29 August 2016 the Board refused to allow the late filing of the Applicant’s notice of appeal.

8.  In its decision the Board found the Applicant to have been 15 days late with her notice of appeal which it regarded as an inordinate delay, that her explanation that she did not receive the Director’s decision until early September 2015 was just a bare assertion without any further details or particulars or supporting documentary evidence, and that there was no special circumstance that would make it unjust not to allow the late filing of her notice of appeal.        

9.  Meanwhile on 25 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from her, the Director by a Notice of Further Decision dated 13 February 2017 rejected the Applicant’s claim under BOR 2 Risk upon finding that she had failed to establish any personal or real risk of her absolute and non-derogable rights under the HKBOR being violated including right to life under BOR 2 upon her return to Indonesia. 

10.  The Applicant did not file any appeal to the Board against this further decision of the Director, but on 10 July 2018 she filed a Form 86 for leave to apply for judicial review of a decision by the Board which she dated 14 February 2017, with no ground for seeking relief given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that she has problem still in Indonesia that she cannot yet go back to her home country but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

11.  Upon ascertaining with the Board that the only decision made by the Board regarding the Applicant’s claim is the one dated 29 August 2016 which refused to allow the late filing of her notice of appeal as referred to above, I propose to treat her present application as one for leave to apply for judicial review of that only decision of the Board, but for which the Applicant would be seriously out of time, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 (“HCO”) provides as follows:

“An application for leave to apply for judicial review shall 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”

12.  Whereas section 21K(6) of HCO provides that:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –

(a)  Leave for the making of the application; or

(b)  Any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

13.  As the last day for the Applicant to file her Form 86 regarding this decision of the Board fell on 29 November 2016, she would be more than 1 year 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: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 1 year and 7 months must be considered as most substantial and excessive, for which she did not provide any explanation in her affirmation, and as the record shows that the decision was sent on the same day to her last reported address and had never been returned through undelivered post, I do not see any reason for such serious delay.

15.  As for the merits of her intended application, as noted above the Applicant has not put forward any proper ground for her intended challenge, and in the absence of any valid explanation from her, the Board was in my view entitled to find her delay with the filing of her notice of appeal inordinate, but it seems to me that it had failed to take account of the merits of her appeal before concluding that there were no special circumstances that would make it unjust not to allow her late filing, as it has been held by the Court of Appeal in Re Qasim Ali [2019] HKCA 430 that the merits of the appeal is one of the relevant matters of fact within the knowledge of the Board to be taken into account as required by section 37ZT(2) of the Ordinance.     

16.  While this may seem to constitute a good reason for extending time to the Applicant’s late Form 86, it would be relevant to remind myself that the delay amounted to more than 19 months without explanation, and more importantly of what the Court of Appeal in AW supra, in approving the principles referred to by G Lam J in Thomas Lai for applications to extend time for judicial review and stated in para 27:

“(1) While in the public law field, it is essential that the courts should scrutinize with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all n indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”   

17.  In H v Director of Immigration and AH v Director of Immigration, FACV Nos. 1 of 2020 & 2 of 2020, [2020] HKCFA 22, 14 July 2020, where the Court of Final Appeal considered, inter alia, the procedure for judicial review applications as governed by Order 53 rule 4 and section 21K of HCO, Mr Justice Fok PJ in the judgment stressed the importance of the time obligation on an applicant for judicial review and the consequences of such delay as stipulated by the relevant rules as follows:

“21. The terms of O.53 r.4(1) are mandatory (“shall be made”) and the obligation on an applicant for judicial review is to apply “promptly and in any event within three months”. The key time obligation is to act “promptly”. So, depending on the context of a particular administrative decision sought to be challenged, it is possible that an appellant who commences proceedings even within three months may be guilty of undue delay for not having acted promptly. But, in any event, there is, subject to extension for “good reason”, a quantified default time limit of three months from the relevant date from which time starts to run,

22. Undue delay in applying is also referred to in s. 21K(6), which sets out the consequences of such delay, providing:

“(6) Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

The reference to “application for judicial review” in both s.21K(6) and (7) is to be read as also referring, where appropriate, to an application for leave to apply for judicial review: see Reg. v Dairy Tribunal, Ex parte Casewell.”    

18.  It is indeed for the purpose to safe guard against substantial prejudice to good administration by any such undue delay that leave to apply for judicial review is required as “an important filter”, as first described by Chief Justice Li in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and repeated by Mr Justice Fok PJ in H & AH supra in paragraph 19(5):

“The requirement for leave to apply for judicial review has been described as “an important filter” and leave will only be granted if the court is persuaded that the arguability test is satisfied by the applicant demonstrating that the case is one which enjoys realistic prospects of success: Po Fun Chan v Winnie Cheung. By this filter, the legislative framework seeks to strike a balance between access to the courts for individuals who may have been affected by public law decisions and the public interest that authorities have certainty over the validity of their decisions.”     

19.  His Lordship proceeded to find at para 37 that Order 53 rule 4(1) and section 21K(6) and (7) when properly construed can together provide as follows:

“(1) Whenever there is a failure to act either “promptly”, or within three months, there is “undue delay” for the purpose of s.21K(6). The time limit for judicial review is not expressed as a single fixed period of three months. Depending on the context, a failure to challenge a particular administrative decision in a shorter period than three months might constitute undue delay for not having been made “promptly”. But, in any event, an application made outside the three-month period will entail undue delay.

(2) An applicant commencing judicial review proceedings who has been guilty of undue delay will require an extension of time in which to apply for leave to apply for judicial review. The request for such an extension should be (and, as a matter of practice, is normally) made in the applicant’s Form 86 notice and the issue of whether to grant the request for an extension of time will always, as a matter of practice, be determined together with the leave application. To justify an extension, the applicant must show “good reason” for extending the period. The principles relevant to a determination of whether good reason has been shown are discussed in the judgment of Godfrey Lam J in Re Thomas Lai and the Court of Appeal in AW v Director of Immigration & Anor. Among the various factors likely to be significant are the merits of the substantive application.

(3) If the court considers that there is good reason for extending the period, it does not follow that leave to apply will automatically be given. That argument was rejected in R v Stratford-on-Avon District Council, Ex parte Jackson. Instead, the court retains a discretion to refuse to grant leave for the making of the application for judicial review: Ex Parte Jackson at p.1325F-G; Ex Parte Casewell at p.747B-C. The existence of good reason for any undue delay is, therefore, , only one facet of the question whether leave to apply should be granted and the grant of leave will also depend on the applicant having a sufficient interest in the matter (see [19(4)] above) and showing that the application satisfies the arguability test (see [19(5)] above). Leave may also be refused on the basis that the granting of the relief sought would be likely to cause hardship or prejudice (as specified in s.21K(6) or be detrimental to good administration, although this conclusion might be less likely to be reached at the leave stage as the court may not have the necessary material available…”  

20.  In the present case, there is no question that the Applicant is guilty of undue delay at the utmost with her present leave application, and while it is true that the Board had failed to take into account of the merits of her appeal before refusing to allow the late filing of her appeal which might give rise to a good reason for extending time, the fact is that the proposed grounds stated in the Applicant’s notice of appeal were essentially mere regurgitations of her claim of fear of harm from her husband over his debt situation with his creditor, and would not have assisted or advanced her case in her appeal before the Board had the late filing of her notice of appeal been allowed, or had the Board taken them into account in its consideration of the merits of her appeal.

21.  Furthermore, given the serious undue delay in the Applicant’s case, detriment to good administration must be a factor to be taken into consideration under s 21K(6) in deciding whether to extend time or to refuse to grant leave for applying for judicial review, as it was pointed out by P Li J in his first instance judgment under appeal in AW and referred to by the Court of Appeal in its judgment at paragraph 69: 

“As pointed out by the judge in §33 of his judgment, what constitutes detriment to good administration varies with cases. He regarded it would be detrimental to good administration if the adjudicator’s decision were to be quashed and the applicant’s CAT claim be remitted to the TCAB for re-assessment. He explained the reasons for his views in this way:

“34. The volume of cases under CAT claim is already very large. The time and resources spent on these cases is immense. It is to the interest of all parties that these cases should be disposed of promptly and efficiently. This is the interest of good administration in this case. Unnecessary or unmeritorious applications should not be allowed to dwell on causing additional pressure to the administration of the Immigration Department.

35. As analysed above, in case the applicant’s CIDTP claim is rejected, there is very little chance that he would be accepted in his CAT claim. To allow his CAT claim to remain in the pool of cases would not be conducive to good administration.”     

22.  In agreeing that the volume of such cases was indeed large, Madam Justice Kwan JA in the judgment for the Court of Appeal went on to state as follows:

“71. … one does not have to look to the additional material sought to be placed before this court, as there is information on this in the public domain. Zervos J spoke about this in some detail in HKSAR v Vu Thang Duong & Anr at §10:

“I have been informed by the Duty Lawyer Service that the number of outstanding non-refoulement claims is approximately 9,500 of which 7,893 have been referred to the Duty Lawyer Service. Most immigration related cases are dealt with by the Shatin Magistracy, but some are also dealt with by other Magistracies. The Duty Lawyer Service from its analysis has informed me that in Shatin Magistracy there are 188 cases pending USM decision of which 155 are on-going …”

72. There is ample basis for the judge’s assessment in §34. I agree … it would clearly be detrimental to good administration to require the primary decision maker to assess the same issue twice, particularly given the large number of pending torture claims to be processed.”

23.  More than 5 years down the road since AW, information in the public domain in particularly at the Legislative Council indeed show that the number of outstanding non-refoulement claims today is still as large, if not larger, and the fact is that even on the basis of the Applicant’s own case at the highest, it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

24.  In the premises, and in view of the most substantial undue delay guilty of the Applicant, it would be in my view clearly detrimental to good administration to allow her non-refoulement claim to be assessed again, albeit by the Board. For all the reasons given, I am not prepared to exercise my discretion to extend time to the Applicant’s late application for leave to apply for judicial review of the Board’s decision, and accordingly I dismiss her application.

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