SITI NAISAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2823/2018

[2020] HKCFI 120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2823 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 22 December 2017 be refused; and

(2) Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1) If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

(2) When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;

(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

(5) Liberty to apply.

Observations for the Applicants:

THE APPLICATION

1.  This is the applicants’ application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.  The first applicant is the second applicant’s mother. The mother’s application will cover her daughter’s application, which means they will succeed or fail together. I shall, therefore, consider the first applicant’s case as the basis and, where it is appropriate to do so, simply refer the applicants as (“the applicant”) below.

3.  The applicant’s application is out of time. The Board’s Decision is dated 22 December 2017. She filed her Form 86 on 10 December 2018, which is about nine months beyond the three months’ period under Order 53, rule 4 of the Rules of the High Court (“RHC”). Even one-month delay is not an insignificant delay. See Re: Moshsin Ali, [2018] HKCA 549 (CACV 54/2018) §§26 & 27.

4.  When asked for explanation for the delay, the applicant was referring to her change of address and she had given her new address to the Immigration Department. It is indeed difficult to sort out the real reason for her delay. I can say that she has failed to give good reasons for such a long delay. On this reason alone, the Court of Appeal had held that the Court could refuse to give her leave to apply for judicial review. See BL v Director of Immigration [2016] 2 HKLRD 520, §§132-133.

5.  I shall, however, say that the applicant has no merit in her intended judicial review. I shall set out the reasons below.

The applicant

6.  The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper in 2009. Since then, she had applied for extension of time to stay from time to time and was allowed to stay until 21 October 2014. During this period of time, she had given birth to the second applicant on 6 August 2014. The status of the second applicant in respect of permanent resident is “Not Established”. On 23 October 2014, she applied for extension of time for staying in Hong Kong. But her application was refused. The applicant was therefore overstaying without approval since 22 October 2014. The applicant lodged a non-refoulement claim by written representation on 20 November 2014.

7.  She claimed that if refouled, she and her daughter would be killed by her husband, Suparmin because she refused to give him money as requested.

8.  She married to her husband in 2004. Her husband demanded money from her from time to time. She had to give him money out of her own savings or borrowings. If she failed to give him money, he would beat her up by kicking her stomach and throwing a chair at her. Two months after the marriage, he began hitting her. When she was four months’ pregnant, he kicked her stomach and as a result, she miscarried. At one time, one of her neighbours tried to mediate and was chopped by her husband with a sickle. The matter was reported to police. Her husband was taken to the police station. But he bribed the police and was released. She had inherited some piece of land from her father.

9.  One day, she discovered that her husband had sold a piece of land without her consent. She confronted her husband. He beat her up with wooden stick for ten minutes. She went to her uncle’s house and received some medication. She did not report this matter to police. After one month, her husband asked for money again. She had no money to give him. He beat her up. She ran out and shouted for help. Someone took her to the police station. Inside the police station, she was raped by three police officers. She could not identify them now. She was told to leave the police station. She did so and returned home. Her husband brought in another woman. They lived in the same house and made love in front of her. She confronted her husband and he hit her on her eyes and mouth.

10.  Her husband hit her tummy when she was one and a half month pregnant. As a result, she had a second miscarriage. She then discovered that her husband had again sold another piece of her land without her consent. He continued with the relationship with the other woman. But she remained to stay with them together. She then worked in Singapore as a domestic helper. She returned from Singapore and lived her husband. She got pregnant again. Her husband suspected that she had affairs in Singapore and hit her. As a result, she had another miscarriage.

11.  She came to Hong Kong as a domestic helper in 2009. She refused to send him money again. He threatened to kill her. She had a relationship with an Indian man and gave birth to the second applicant. This Indian man had left her and she has no idea where he is now.

The Director’s Decisions

12.  The Director considered her application in relation to the following risks:

a. risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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 under RC”).

13.  By Notice of Decision dated 29 May 2015 and another Notice of Further Decision dated 16 October 2017 (collectively “the Director’s Decisions”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

14.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 5 October 2016.

15.  By Decision dated 22 December 2017 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decisions.

16.  The Board considered the applicant’s case and for the reasons given that it was contrary to common sense in relation to the way her husband treated her, she had miscarriage, but she would ask her husband to see that she had miscarriage [44-50] and, at paragraph 51, the Board found that her various aspects of her evidence were incredible and therefore unreliable. The Board held that this cast doubt on the overall reliability of her evidence. Her claim, on the whole, would not be reliable.

17.  The Board further found that it is unlikely that her ex-husband would harm her if she returns to Indonesia. [53] She may go to live in other places. [58] Although she said that she had been raped by three police officers, state protection would still be available for her as according to the Country of Origin Information. [59] She is only 37 years old. She has a lot of options for relocation. [66 & 67].

Application for leave to apply for Judicial Review

18.  In her Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decisions and the Board’s Decision respectively.

19.  In her affirmation in support of her application dated 10 December 2018, the applicant relied upon the following grounds:

1. she was unable to lodge her appeal against the Director’s Further Decision and she did not understand the reasons for the decision in relation to BOR2;

2. there was no language assistance or legal assistance for her where there was translation for other claimants in other cases – lack of high standard of fairness; and

3. the Adjudicator was biased and he simply raised one or two issues of facts as the grounds for disbelieving her full story, without taking into consideration that those events happened years ago and her vague memories, especially she had born a child.

DISCUSSION

The Director’s Decisions

20.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

21.  The applicant has not set out any exceptional circumstances.

22.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

23.  The applicant’s application for leave to apply for judicial review of the Director’s Decisions therefore fails in limine. I dismiss her application.

The Board’s Decision

24.  The application is late. The Board’s Decision is 22 December 2017. She filed Form 86 on 10 December 2018. I have to consider the merits of her application before I decide whether time should be extended for her application.

25.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. Her friend had explained the Hearing Bundle and the Board’s Decision to her.

26.  I put the Board’s findings to her for her comments. She said that she had no comments.

27.  It is obvious that as the Board rejected her evidence in support of her claim.

28.  The applicant has no absolute right of free legal representation at every stage of the proceedings as she has already had legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

29.  The fact that the applicant did not have language assistance is irrelevant to her application for leave to apply for judicial review. Re Magar Surendra [2019] HKCA 667, 13 June 2019. There is no evidence that she had sought assistance from the Director or the Board and they refused her request for assistance in the language. She cannot raise this complaint.

30.  Ground (1) is a non-point as the Director’s Decisions are dealt with by the Board.

31.  Ground (2) fails in light of the above authorities.

32.  The Adjudicator is the final fact-finder of her case. He had set out the reasons for not believing her. Those were the examples only. He had taken all the incidents into account. The applicant still cannot explain those incidents which the Adjudicator found contrary to common sense. These matters are not matters of memory. They are contrary to common sense. Whether the Adjudicator believed her is a matter within the Adjudicator’s discretion provided he had reasons in support of his conclusion. Ground (3) fails too.

33. The applicant fails to show that she has a reasonable chance of success in their proposed judicial review.

CONCLUSION

34.  Since the applicants’ application for judicial review has no reasonable prospect of success, there is no reason to grant them extension of time to file their application. I refuse to grant them the extension of time. Accordingly, I dismiss their application.

FURTHER DIRECTIONS

35.  It is further directed that:

1. If the applicants intend to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, they must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;

2. When filing the application for leave to appeal, the applicants must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;

3. The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondents and whether the application for leave to appeal shall be determined on paper;

4. If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and

5. Liberty to apply.

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