LUTFIANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2314/2018

[2021] HKCFI 2051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2314 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 the Applicant in open court;

1.  extension of time to file the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 19 January 2018 refused; and

2.  the application for 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 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 19 January 2018 (the “Decision”).   The Applicant is “double late” in appealing the decision of the Director of Immigration (the “Director”) in the Notice of Decision (the “Notice”) and in seeking leave to apply for judicial review of the Board’s Decision in refusing her late application to appeal the decision of the Director in the Notice.

2.  The Applicant is an Indonesian national.  She had lodged a non-refoulement claim by way of written representation dated 28 October 2015 alleging that her father would threaten to kill her if she returned to Indonesia being pregnant but without a husband (the “Previous Claim”).  In her non-refoulement claim form (“NCF”) dated 14 January 2016, she stated that on 2 August 2009 she entered into a religious marriage ceremony with a Pakistani man which was neither registered with the Marriage Registry in Hong Kong nor recognized by Indonesian law.  She gave birth to her first daughter in Indonesia on 5 July 2011.  In early 2015, the Applicant became pregnant again and gave birth to her second daughter in Hong Kong on 13 December 2015.

3.  On 28 February 2016 the Immigration Department received a letter from the Applicant requesting to cancel her non-refoulement claim because she wanted to go back to Indonesia and it was safe to return.  By a letter dated 29 February 2016, the immigration officer, on behalf of the Director informed her that her non-refoulement claim was treated as withdrawn. On 3 March 2016, the Director also received a letter from the Duty Lawyer Service which was then representing the Applicant confirming her intention to withdraw her non-refoulement claim.

4.  Then, by a letter dated 31 October 2016, the Applicant requested re-opening her non-refoulement claim alleging her life would be in danger if she returned to Indonesia.

5.  Under section 37ZE of the Immigration Ordinance, a claimant who has made a torture claim and withdrawn it before it is decided may ask for it to be re-opened if he provides sufficient evidence in writing to the satisfaction of an immigration officer that:

(a) since the withdrawal, there has been a change of circumstances that—

(i) could not reasonably have been foreseen by the person when the person gave the notification under subsection (1); and

(ii) when taken together with the material previously submitted for the claim, could increase the prospect of success of the claim; or

(b) by reason of special circumstances, it would be unjust not to re-open the claim.

Pursuant to that section, on 3 November 2016 the immigration officer requested the Applicant to provide information and elaborate her change of circumstances by 10 November 2016, failing which her request will be assessed based on the available information.  The Applicant did not respond.

6.  Having considered the materials submitted in support of her Previous Claim, her NCF dated 14 January 2016, her letter of 31 October 2016, her representations and all the circumstances, the immigration officer was of the view that the Applicant had failed to provide sufficient evidence to show there has been a change of circumstances since her Previous Claim was withdrawn and that the alleged change of circumstances as raised in her written representations when taken together with the materials previously submitted in support of her Previous Claim, would give her subsequent claim a realistic prospect of success.  Hence the immigration officer issued a Notice dated 14 February 2017 on behalf of the Director rejecting the Applicant’s request to re-open her non-refoulement claim (the “Notice”).  In the last paragraph of the Notice, the immigration officer reminded the Applicant that if she is aggrieved by her decision, she may lodge an appeal/petition to the Board within 14 days from the date of the Notice and enclosed a copy of the notice of appeal to the Board and the address of the Board.

7.  Allowing for two days for the Notice to reach the Applicant by the usual course of mail, the Applicant should have lodged her notice of appeal by 2 March 2017.  Her notice of appeal only reached the secretariat of the Board on 8 March 2017.  It was six days late.

The law – late filing of notice of appeal

8.  The appellate regime relating to non-refoulement claims under the Immigration Ordinance permits a claimant to appeal to the Board against the decision of the Director refusing his claim within 14 days of the decision of the Director: see section 37ZS.  Section 37ZT sets out the procedures for dealing with a notice of appeal filed after the expiry of the 14-day period.  This section provides as follows:

“37ZT. 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 any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(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—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.”

9.  It is obligatory for the claimant to furnish a statement of reasons for the late filing and to provide documentary evidence wherever available.  It is mandatory for the Board to decide as a preliminary decision without a hearing whether to allow the late filing.  The Board shall only make its decision on the basis of the statement of reasons and accompanying documents furnished by the claimant and the relevant matters of fact within the Board’s own knowledge.  The test is whether there are special circumstances which would make it unjust not to allow the late filing of the notice of appeal.  To answer that question, the court adopts the three stage approach laid down in The Secretary of State for the Home Department v Begum[1]:

“As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows:

i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders.  As listed in para. [35] of the judgment in Denton:…’”

10.  The Board has to consider (i) seriousness of the breach; (ii) reasons for the breach; and (iii) an evaluation whether in all the circumstances of the case known to the Board that it would be unjust not to allow the late filing.  It is certainly unjust not to allow the late filing to enable a meritorious appeal to proceed.  The converse is also true. It is not unjust to refuse an extension of time so as to allow an unmeritorious appeal to proceed.  These procedures are also set out in the Petition Guide.

The length of the delay and explanation

11.  The length of the delay was six days, which is not substantial, but this does not mean the Applicant was entitled to late filing as of right.  The explanation she gave for the late filing in Section 5 of the notice of appeal is:

“I am not feeling good due to pregnancy. I feel weakness and dizziness even I visited doctor and I enclosing certificate of the hospital. Therefore I am late for replying due to my weak health condition.”

12.  The Applicant submitted four documents from the Hospital Authority.  But the Board noted that the documents showed that the hospital visit took place 11 days before the Notice was issued and four weeks before the date of filing of the notice of appeal on 4 March 2017.  The latest document is a statement of account for the care she received on 3 February 2017.  The documents do not indicate that the Applicant was suffering from an abnormal gestation or identify a disabling condition. They do not support the Applicant’s grounds for the late filing of the notice of appeal, ie that she suffered “weakness and dizziness” between 16 February and 2 March 2017.  The delay was not serious but the Board did not accept that the Applicant’s pregnancy related illness was so significant that it prevented her from filing her notice of appeal within time.  That was the conclusion reached by the Board in respect of the first two stages of the Begum analysis.

Evaluation: whether unjust not to allow late filing

13.  The Board then proceeded to the third stage of the Begum analysis to evaluate all the circumstances of the case in order to deal justly with the application.   The Board noted the Applicant’s failure to respond to the Director’s letter of 3 November 2016 requesting information about change of circumstances justifying re-opening of her application for non-refoulement protection.  The Board said at paragraph 33 of the Decision:

“33. The [Applicant’s] failure to respond to the Director’s letter of 3 November 2016 and her application for late filing of her notice of appeal appear to reflect a pattern of behaviour which undermines the efficiency and cost effectiveness of the non-refoulement claims process. If the Board chose not to enforce compliance with the timelines provided in the Ordinance, it would send a message to appellants that rules, practice directions and court orders are unimportant, possibly even arbitrary, which would have the effect of bringing the Unified Screening Mechanism into disrepute.

34. Considering all available information in accordance with section 37ZT of the Ordinance, including the matters in section 5 of the notice of appeal and other matters within the knowledge of the Board, and bearing in mind the analytical stages and principles described in Begum, the Board disallows the late filing of the notice of appeal pursuant to section 37ZT(4) of the Ordinance.”

14.  The Court agreed entirely with the reasoning of the Board.  Hong Kong has been flooded with non-refoulement applications. Regrettably to say, many are unmeritorious, being threats arising from personal disputes than torture, cruelty, inhuman and degrading treatment, and punishment perceived under the relevant conventions.  Unmeritorious claimants are burdening Hong Kong and the international community committed to give protection to genuine asylum seekers.  Non-compliance with timeline is an unnecessary burden had the applicants complied with the timeline.  Non-compliance without valid explanation is practically an abuse of process.  These applications are overloading our Unified Screening Mechanism in processing the claims and our judicial system in reviewing the decisions of the decision makers, much to the prejudice of genuine asylum seekers.  There is a need to ensure that these applications are conducted efficiently and at proportionate cost.  In this regard, compliance with rules, practice directions and court orders is of paramount importance.  On the above consideration, the Board was satisfied that it would not be unjust to refuse the late filing.

15.  The Court agreed with the above, but took a step further to consider merits of the substantial application.  These asylum seekers are foreigners usually with little knowledge about the legal system in Hong Kong and suffer some language disabilities, though many of them have stayed in Hong Kong for tens of years.  The genuine asylum seekers deserve sympathetic consideration.  Where the delay is short, there is room for tolerance.  It is all a matter of balancing the length of the delay, the explanation, the applicant’s personal circumstances and merit of the substantial application.  Subject to the overriding interest of justice, these rules, practice directions and court orders must be obeyed.  This interest of justice would require a consideration of the merits of the application, ie the intended appeal against the decision of the Director in the Notice. 

16.  The Applicant’s grounds of appeal as stated in Section 2 of her notice of appeal are as follows.  The Applicant had given birth to a daughter in Indonesia and another daughter in Hong Kong.  She said:

“my family members threatened me that if I come back without husband they will harm or even they can kill me. before I cancelled my non-refoulement claim because I have read a news that for Indonesia visa my husband can get on arrival. the link of website where I have seen the news can be found in the email that I have sent you on 27/2/17. 00:35:20. So therefore I requested to close my claim. but once I went to my consulate of Indonesia in Causeway Bay Hong Kong. I ask for confirmation about my husband’s visa they replied me that no your husband must need to get visa before flying for Indonesia.”

17.  The gist of her case is that she withdrew her non-refoulement claim because she was informed or mis-informed that her husband could apply for a visa to visit Indonesia upon landing.  She knew her husband required a visa and is qualified to obtain one. All that she had to do was to introduce her husband to her family.  She was under no threat for her life for other reasons, such as inter-racial marriage or a marriage not recognized by the law of Indonesia or the place where the marriage ceremony took place or she had given birth to children out of wedlock as suggested in her NCF.  She has to introduce her husband to her family and her husband needs a visa to visit Indonesia.  Those were the circumstances when she withdrew her non-refoulement claim.

18.  Now the Applicant claimed she was informed by the consulate that her husband has to apply for a visa before landing.  That is the only reason she sought to re-open her claim. That was the change in circumstances she relied on for re-opening her claim.  The reason is not because her husband is not qualified to obtain a visa or that there is no consular office in Hong Kong where her husband could obtain a visa before landing.  There has been no change in circumstances, all along her husband requires a visa to visit Indonesia.  Whether he could apply for one on landing or must obtain one in Hong Kong is completely irrelevant.  The grounds she advanced in her notice of appeal have no prospect of success at all.  Even after taking into account merits of the intended appeal to the Board, the Court agreed with the Board that it would not be unjust to refuse the late filing.

Length of delay and explanation for the delay in applying leave to apply for judicial review

19.  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.  The Decision of the Board was delivered on 19 January 2018.  It was not until 23 October 2018 that the Applicant lodged her application for leave to apply for judicial review (Form 86).  She was about six months out of time.  Despite that was explained to her in simple language, the Applicant was unable to provide any reason why she was late.  She only said that she did not understand as she did not have a lawyer or friend to assist her.  The Court consider she was being evasive.  There was no valid explanation for the delay.

20.  In AW and Director of Immigration and William Lam[2], the Court of Appeal held that 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:

(1) length of delay;

(2) explanation for the delay;

(3) merits of the substantive application;

(4) 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; and

(5) 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.

21.  The delay of six months is inordinate and there is no valid explanation.  For the purpose of the application for leave to apply for judicial review, the merit of the substantial application means the merits of the intended judicial review of the Decision of the Board in refusing the late application to appeal the decision of the Director in the Notice.  Those merits including the merits of the appeal against the Director’s decision in the Notice have been fully considered above. 

22.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[3].

23.  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 late filing of notice of appeal against the decision of the Director.  It was on that basis that the Board found there was no valid explanation for the delay (albeit of six days only) and that it would not be unjust to refuse the application for late filing.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  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, unreasonableness and irrationality.  There were no such elements in the Decision.  The Decision was utterly without fault.  Furthermore, the Court agreed with the Director’s finding of fact that there was no change in circumstances since the withdrawal of her non-refoulement claim to justify its re-opening. The Court was also satisfied that there were no merits in the intended appeal against the Director’s decision in the Notice.  The intended judicial review of the Board’s Decision has no prospect of success.

Conclusion

24.  For the above reasons, the application for extension of time to file the application for leave to apply for judicial review and the application for leave to apply for judicial review are refused.

Postscript

25.  At the hearing, the Applicant produced a three-page submission with exhibits.  The Court had considered them but did not find it necessary or relevant to mention them in its decision.  In her submission, she repeated her case, her marriage to her Pakistani husband, the difficulties she had in proving her marriage is legal and obtaining visa for her husband to visit Indonesia, and the honour killing which her parents intended to practice on her for getting pregnant out of wedlock. 

26.  The submission includes an update of her present situation.  She eventually obtained from Pakistan a marriage certificate issued on 17 August 2018 in respect of her and her husband’s marriage on 1 January 2010 entered on 5 March 2010.  She exhibited four birth certificates in respect of her children born in 2015, 2017, 2018 and 2020 in Hong Kong.

27.  She said her problem is that the Indonesian consulate will not renew her passport because of her outstanding non-refoulement claim and the consulate required a letter from the Immigration Department, but the immigration officer refused to issue the letter.  She asked for the Court’s assistance to renew her passport.  She said if she could renew her passport, she could process her husband’s visa and all her problems would be solved.  She asked to be allowed to stay in Hong Kong until when she felt it was the right time to leave.  She did not say what is the purpose of the letter from the Immigration Department.  Presumably, it is to certify that her non-refoulement claim has been concluded.  It appears that her problem was self-created.  She had withdrawn her claim on 28 February 2016 but chose to re-open it.  She insists to keep her claim alive and to stay in Hong Kong. That was what prevented her from having her passport renewed, which is the key to her normal life back in Indonesia. 

28.  As for her alleged fear of honour killing, to the Court’s knowledge, while honour killing is being practised in Muslim countries in the Southern Asia Continent, it is not practised in the islands of Indonesia off the continent.  That issue was not explored by the Director in this case as a result of the Applicant’s withdrawal of her non-refoulement claim.

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]  (2016) EWCA Civ 122

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

[3]  [2018] HKCA 524 at [14(1)]