MIFTAHUL KHUROTA AYUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 109/2022

[2022] HKCFI 1528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 109 of 2022

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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 the Applicant being absent in open court;

1.   Extension of time to apply for leave to apply for Judicial Review be refused; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 11 July 2018 (the “Decision”).  The Applicant has not requested an oral hearing.  The Form 86 was filed on 31 January 2022, more than three and half years after the Decision was made.  Her grounds for judicial review are that she “[does] not want to go back to [her] country, as [her] life is at risk.” She also requests the Court to consider her application. Her application was grossly out of time by more than three years and three months.

2.  A hearing was scheduled for her at 10:00 am on 19 April 2022 so as to ascertain from her the particulars of her grounds for application and her explanation for the late application.  A notice of hearing was sent to her by post to her address as stated in her Form 86 and supporting affirmation, which was the Castle Peak Bay Immigration Centre.  The Court was informed that she had been discharged.  Another notice of hearing was sent to her by post to her address as advised by the Immigration Department.  She did not appear.  It later transpired that she had indeed visited the Receipt and Dispatch Section of the High Court Building and deposited a written submission at 9:01 am.  Thus, she had notice of the hearing and deliberately chose not to attend.  Having considered the nature of the application and issues raised, the Decision, the papers, her written submission and all the circumstances, the Court considered it appropriate that the application be determined her application in her absence.

3.  The Applicant is an Indonesian national, now aged 38.  She first came to Hong Kong to take up employment as a foreign domestic helper on 14 May 2008.  She last entered Hong Kong on 25 December 2012. She became an over-stayer on 4 June 2013 after her employment contract was prematurely terminated.  She was arrested by the police on 24 February 2014 and referred to the Immigration Department.  She applied for a non-refoulement protection by two undated written representations in March 2014.

4.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 8 February 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims.  She appealed to the Board against the decision in the Notice.  Her appeal was scheduled to be heard before the Board on 12 January 2018.  The notice of hearing was sent to her at her last known address.  She did not appear.  She also did not respond to the Board’s invitation by letter to explain her non-appearance and to make submission.  Her appeal was determined by the Board on paper in her absence.  By the Board’s Decision dated 11 July 2018, her appeal was dismissed.   Now more than three and half years later, she sought leave to apply for judicial review of that Decision and she did not appear at the hearing also.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service, her written representations and the record of her screening interview. 

6.  One day in 2007, four men came to the Applicant’s home to demand her father to repay a loan owed to them. They threatened to kill all of the family members if her father could not repay.  Then, her father forced the Applicant to repay the loan for him as she was the only unmarried child of the family.  Between July and September 2007, her father beat her about seven times with his belt for around two to three minutes each time when she was unable to pay.  His father warned her that if she did not help to repay the whole family would be harmed or even killed by the loan shark.  In September 2007, the Applicant decided that she could no longer continue to be beaten by her father or threatened by the loan shark. She left Indonesia and came to Hong Kong to work as a foreign domestic helper on 14 May 2008.  When her last employment contract was terminated in May 2013, she felt it was not safe to return to Indonesia for fear that the loan shark would locate her and harm her.

The finding of the Board

7.  Based on the Country of Origin Information (“COI”), the Board accepted there is evidence of loan sharking activities and debt collectors preying on vulnerable people in Indonesia.  But it was concerned about aspects of the Applicant’s credibility.  Hence, it scheduled an oral hearing with a view to discuss these issues with her, including:

(a)   the general credibility of her claims;

(b)   the reasons why the loan shark would pursue her, given that the loan was borrowed by her father;

(c)   whether there is any documentary evidence relating to the loan;

(d)   why the Applicant believes she would be unable to relocate to another part of Indonesia; and

(e)   why the Applicant would be unable to obtain assistance of the Indonesian authorities if her father or the loan shark attempted to harm her.

8.  By her failure to appear at the hearing, the Applicant denied the Board the ability to question her about her claims and test their veracity.  The Board was therefore unable to make a finding that the Applicant’s father had borrowed money from a loan shark, that he defaulted on the loan, that the father threatened the Applicant or harmed her or that she was ever threatened by the loan shark.  The Board was unable to make a finding that the Applicant would be at risk of harm from her father or the loan shark or his associates if she returns to Indonesia.  The Applicant bore the burden of proving her entitlement to non-refoulement protection.  On the state of the evidence and the Applicant’s refusal to co-operate with the Board’s enquiries, the Board was not satisfied that she had proved that she would be harmed by the loan shark or his associates or by her father if she returns to Indonesia.  Accordingly, the Board upheld the decision of the Director in the Notice and dismissed her appeal.    

The applicable legal principles          

9.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

10.  Order 53, rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.  An application made after three months is deemed to have been made with undue delay.  By 31 January 2022, the Applicant’s application was more than three years and three months out of time.  In considering whether to grant extension of time for making an application, the court takes into account (i) the length of the delay; (ii) the explanation for the delay; (iii) merits in the substantive application; (iv) the balance of prejudice to the applicant and the proposed respondent if extension of time is granted; and (iv) whether the application raises questions of general public importance which are likely to have to be resolved by the courts in any event: see AW and Director of Immigration[6].

11.  Merits is usually a very important factor.  It was held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[7] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”.  Where the delay is not very substantial, merits is usually the determinant factor.  It would be convenient to examine merits first, which would also dispose of the substantive application, if extension of time is granted.

Grounds for judicial review

12.  The Applicant did not state any grounds for judicial review in his Form 86.  In her supporting affirmation, she averred:

“I would like to apply for judicial review for legal proceedings as I don’t want to go back to my country, as my life is at risk. Please consider my application.”

13.  The Applicant’s grounds are that she disagrees with the outcome of the Decision and that her life will be at risk if she returns to Indonesia.  She asks this Court to allow her application for non-refoulement protection.  Basically, she is disputing the Board’s finding of fact that her life will not be at risk if refouled and is asking this Court to re-assess her claims and allow her application for non-refoulement protection.  These are outside this Court’s jurisdiction in an application for judicial review.  She has not identified any error of law, procedural irregularity or unfairness and irrationality in the Decision.  She has not identified what is wrong with the Decision other than that she disagrees with it.  She did not attend the Court’s hearing to enable her to perfect her grounds.  In the absence of 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. 

14.  In her written submission lodged with the Court, the Applicant advanced the following grounds:

(1)   She disagrees with the decision of the Director in the Notice and the Decision of the Board because she did not think her case has been determined fairly (paragraph 2 of her written submission);

(2)   The Board is in breach of procedural fairness in the following aspects:

(A)  the Board unlawfully fettered its discretion by refusing her appeal on the ground that she did not satisfy the requirement (paragraph (3(A));

(B)  the Board acted in a procedurally unfair manner in dealing with her appeal (paragraph (3)(B));

(C)  the Decision was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness (Paragraph (3)(C));

(3)   “It aggravates [the Applicant] that her credibility was found questionable”; she “strongly believes it was an unfair hearing due to lack of care by [the Board] to make appropriate arrangements in relation to the hearing bundle” (Paragraph 4); and

(4)   The Board erroneously relied on source of news which is not officially recognised or is hearsay or outdated.

15.  In summary, the Applicant complained about procedural unfairness, unreasonableness or irrationality in the Decision; but gave little particulars other than the handling of the hearing bundle and the reliance on outdated COI.  The rest of her complaint is about the Board’s finding of her credibility and the outcome of the Decision, which are finding of facts solely within the province of the Board.  She deliberately defaulted at the hearing.  This deprived the Court the opportunity of seeking better particulars from her.  The Court could only deal with her particularised complaint about the preparation of the hearing bundle and the use of COI and leave the other complaints about procedural unfairness, procedural errors and irrationality to an overall examination and scrutiny of the Board’s Decision.

Merits of the substantive application

16.  The Applicant complained about lack of care by the Board in making arrangements in relation to the hearing bundle.  But she gave no particulars as to what was the unfairness or lack of care in the arrangement relating to the hearing bundle.  The hearing bundle contains the following documents:

(i)     the Applicant’s written representation;

(ii)   the NCF dated 17 January 2017;

(iii)  the record of screening interview dated 6 February 2017;

(iv)  the Director’s Notice of Decision dated 8 February 2017;

(v)   the Applicant’s Notice of Appeal to the Board dated 22 February 2017;

(vi)  the skeleton submission of the Director dated 5 January 2018; and

(vii) the COI.

17.  It contains all the usual and necessary materials for the Applicant to present her appeal and for the Board to make its Decision.  There is nothing to suggest any relevant information or material are missing from the hearing bundle or that it was delivered to her late as to prevent her from properly preparing for her appeal. In any event, she did not attend the appeal hearing and did not respond to the Board’s invitation for submission.  The hearing bundle is substantially in English.  However, items (i), (ii), (iii) and (v) were provided or prepared by the Applicant herself or by herself with legal and language assistance.  She knew the contents of these documents.  The Director’s Notice, item (iv), is in English.  To the Court’s knowledge, claimants who were represented by the Duty Lawyer Service in the proceedings before the Director are usually explained the Director’s decision in the Notice by the Duty Lawyer Service.  Even if not, the Applicant had about a year between the service of the Notice on her and the hearing of the appeal to seek language assistance from her own resources or Indonesian community to assist her in understanding the Notice.  The Applicant had been provided legal and language assistance in the non-refoulement proceedings before the Director.  The high standard of fairness does not entitle the Applicant to be provided such assistance at all stages of the non-refoulement proceedings.  The Director’s submission is usually a formal statement that the Director will not appear at the hearing and maintains a neutral stance.  In any event, had the Applicant attended the hearing, she could have obtained assistance of the Board’s interpreter.  In the absence of particulars, it is impossible to further consider this ground of her application.

18.  The Applicant complained about the Board’s reliance on outdated COI which is not officially recognized or is hearsay.  The Board’s reliance on COI was to assist the Applicant and to support her claim about the prevalence of loan sharking activities and the use of violence by debt collectors in enforcing the loans. The Board found that as the Applicant did not attend the hearing to address the Board’s concerns about the veracity of her claims, the Applicant failed to prove the factual basis of her claims for non-refoulement protection.  It made no adverse finding against the Applicant on the basis of COI.  There is no substance in this complaint.

19.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board had doubts about the veracity of the Applicant’s claim and invited her to attend the hearing to clarify her case.  She did not attend and did not respond to the Board’s invitation for explanation and submission.  As a result, the Board was unable to satisfy itself found that she had discharged the burden of proving the factual basis to support of her claims.  It was on that basis that the Board found that she had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  These are finding of facts which are 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.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Length of the delay and the explanation for the delay

20.  As explained in paragraph 4 above, the Applicant’s application is more than three years and three months out of time.  The delay is grossly substantial whether in terms of duration or the context of the statutory period of three months to apply.  She did not give any explanation for the delay and did not attend the hearing scheduled for her.  Not only had she been sleeping on her rights, she did not prosecute her claims with due diligence.  The Court could have specifically invited an explanation from her.  But in view of the very substantial delay and the absence of any realistic prospect of success, this is unnecessary.  This is precisely the type of case to which the Court of Final Appeal’s dicta in Po Fun Chan v Winnie Cheung is applicable.  For these reasons alone, the Applicant should be barred from pursuing his rights in a judicial review.

Balance of prejudice to the applicant and the proposed respondent if extension of time is granted

21.  As the intended judicial review has no realistic prospect of success, the Applicant will suffer no prejudice, if no extension is granted.  The prejudice to the proposed respondent and to public administration, if a challenge is allowed to proceed, is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment. 

No questions of general public importance

22.  The intended application is essentially an appeal against the finding of fact by the Board dressed up as an application for judicial review.  It does not raise any questions of general public importance which are likely to have to be resolved by the courts in any event.

Conclusion

23.  The application for leave to apply for judicial review is late for a very substantial period of more than three years and three months.  The Applicant has no reasonable explanation for the delay.  She repeatedly slept on her rights.  She did not prosecute her appeal before the Board or her application for judicial review before this Court with diligence by defaulting the hearings.  She has no bona fide intention to prosecute her claims.  Her substantive application has no realistic prospect of success.  She will suffer no prejudice if extension is not granted but the proposed respondent will suffer serious prejudice if extension is allowed.  Her application does not raise any questions of general public importance which will have to be determined by the court in any event.  All these considerations point against granting extension of time.  The Applicant should not be granted an extension of time to enable her to file this application.  As her application for leave to apply for judicial review was filed grossly out of time and no extension of time will be granted, her application is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)

[6] CACV 63/2015 (unreported) 3 November 2015

[7] (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ