HARYANTI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1464/2018

[2022] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1464 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.      Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

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

3.      Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 25 July 2018 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 7 June 2018.  Upon the Court’s enquiries, it was discovered that the Board had only made one decision dated 5 January 2018 relating to the Applicants’ non-refoulement claim (the “Decision”) dismissing their appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 22 October 2015 (the “2015 Notice”) and 19 June 2017 (the “2017 Notice”).

2.  The Immigration Department is named as one of the proposed respondents in the Form 86, but no relief is sought against the decisions of the Director of Immigration (the “Director”).  In the context of the Applicant’s application, the only relevant decisions made by the Director are the 2015 Notice and the 2017 Notice which were the subject matters of the appeal before the Board.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notices because there are established statutory procedures of appeal to the Board under Section 37ZR of the Immigration Ordinance, Cap. 115 and the Applicant has invoked those procedures.  The Director’s decisions in the Notices were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[1].  In the circumstances, leave was granted to amend the date of the decision in respect of which relief is sought in the Form 86 by to “the Board’s decision dated 5 January 2018”, ie the Decision.

3.  As the 2^nd and 3^rd Applicants are minors, the 1^st Applicant who represented them had been advised by the Court via its letter dated 31 December 2021 to seek legal representation whether by the Duty Lawyer Service or private solicitors.  Seven months have since lapsed.  They did not respond.  No memorandum of such application for legal aid was received from the Director of Legal Aid.  The Applicants did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

4.  The application was filed six months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, it is filed more than three and half months out of time.  The application is deemed to include an application for leave to apply out of time.

5.  In AW and Director of Immigration and William Lam[2], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  The delay is substantial.  The Applicants gave no explanation for the delay.  Having regard primarily to the interest of the minors and the fact that the Applicants are unrepresented, this Court was prepared to condone their delay, if there are merits in the application.  Hence, the Court proceeded to assess the prospect of success in the proposed judicial review.

Background

6.  The 1^st Applicant is an Indonesian national, now aged 43.   She first entered Hong Kong in 2007 to work as a foreign domestic helper.  She entered Hong Kong again on 19 December 2008 but overstayed when her employment was prematurely terminated.  She was arrested on 11 November 2009 and released on recognisance.  She absconded twice until she was re-arrested.  On each occasion she gave birth to a daughter, ie the 2^nd and 3^rd Applicants on 27 October 2010 and 22 January 2014 respectively.

7.  In 2014, she raised a claim for non-refoulement protection on behalf of herself, the 2^nd and 3^rd Applicants.  In due course, their non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6] grounds.  Their claim under the first three grounds was dismissed by the 2015 Notice and their claim under the fourth ground was dismissed by the 2017 Notice.  They appealed to the Board against the decisions in the two Notices.  Their appeal was dismissed by the Board’s Decision dated 5 January 2018.  On 25 July 2018, they applied for leave to apply for judicial review of that Decision. 

The Applicants’ case

8.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1^st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, the 1^st Applicant claimed that she will be harmed or killed by her husband forre fusing to give him money, for having given birth to the 2^nd and 3^rd Applicant outside their wedlock; and that she will be imprisoned for adultery; and all the Applicants will be discriminated as unwed mother or illegitimate children by their neighbours, if returned to Indonesia.

9.  The 1^st Applicant was born and raised in Central Java Province in Indonesia.  She grew up with her grandmother and has no sibling.  She completed high school (Second Year) in 2001 and worked as a domestic helper in Semarang City in Central Java and in Singapore, before coming to work in Hong Kong.

10.  She alleged that in around 2001 she was raped while under the influence of drugs and became pregnant.  She was forced by her father to marry that rapist while she was about six-month pregnant.  She gave birth to a baby girl who died about six hours after birth.

11.  The 1^st Applicant started working in Semarang City in 2001 to support herself and her husband. She went back home every seven months.  One day in 2002, her husband had a quarrel with her over money and beat, slapped and kicked her.  She suffered internal bleeding in her right eye which took her two weeks to recover.  She did not seek medical attention or report to the police, as she was afraid that her husband would become even more violent.  She dared not divorce him because he had threatened to kill her when he heard about her intention to divorce.

12.  One day towards the end of 2003, her husband held a sickle against her neck and threatened to kill her unless she gave her salary to him.  He also threatened to kill her if she divorced him.  She received a call from her husband every three or four months demanding for money and he came to her employer’s home in Semarang City to collect money from her.

13.  On one occasion in 2005, her husband slapped her, kicked her in her right thigh and grabbed her left arm forcefully when she refused his demand for money.  The 1^st Applicant fought back with a bamboo stick.  She suffered bruises on her right thigh and her face was swollen.  She could not tolerate him anymore and went to work in Singapore.  Three days before her departure, she informed her husband of her move and her husband brought her food.

14.  Her husband continued to demand money from her while she was working in Singapore.  She heard that he was wanted by the police for theft but he refused to tell her about it.  When the 1^st Applicant returned to Indonesia in 2007, she saw her husband sniffing drugs with his friends.   Though she had informed him about her return the day before, her husband was angry because of her unexpected appearance.  He threatened to kill her if she reported what she saw to the police. 

15.  The 1^st Applicant went back to work in Hong Kong in August 2007.  Her husband called her about once a month for money.  She had to borrow from a local bank to meet his demands.

16.  After she had learnt from her husband’s friend, Siti, who worked as a domestic helper in Hong Kong that her husband had been convicted of illegal gambling, she stopped remiting money to him and changed her phone number.  Thereafter, she lost contact with her husband. 

17.  The 1^st Applicant married a man known as Tarique under a religious ceremony in Hong Kong.  In 2010, Siti told her husband about the marriage and that the 1^st Applicant had given birth to a daughter with Tarique.  Her husband was furious and asked Siti and other villagers for 1^st Applicant’s telephone number and address.  Siti warned the 1^st Applicant to be careful if she returned to Indonesia.

The finding of the Board

18.  The Applicants’ case is based on the 1^st Applicant’s bare assertions which were vague and lacking in details.  The Board found it incredible that the 1^st Applicant would have volunteered to inform Her husband of her intended departure to Singapore and her return to Indonesia, if she was fearful of him.  It rejected her explanation that she did so with the hope of reconciliation as illogical. It noted that instead of seeking protection in Hong Kong, the 1^st Applicant absconded from recognizance twice and never claimed protection until she was arrested.  The Board found she was dishonest and unreliable.

19.  The Board dismissed the Applicants’ fear of discrimination and the 1^st Applicant’s fear of imprisonment as speculation.  It did not give full reasons for that finding.  Obviously it accepted the Director’s reasoning in the 2015 Notice.  The Director accepted that community stigma remains a significant difficulty faced by single mothers and/with children born outside wedlock[7] but found that psychological counselling, financial and other forms of assistance are available from non-governmental organisations to alleviate their difficulties.  Furthermore, the Board also held that discrimination per se is not a legal basis for non-refoulement.

20.  As for the 1^st Applicant’s fear of imprisonment for adultery, there is no evidence that she will be prosecuted on her return to Indonesia.  As the Board rightly pointed out, even if that should eventuate, it is legal sanction under Indonesian law and is therefore excluded from the definition of “torture”.

21.  Even on the case as asserted by the 1^st Applicant, the Board found the injury or ill-treatment she suffered did not reach the minimum level of severity.  It therefore assessed the harm and risk of harm the Applicants would face upon their return to Indonesia was low.  Further, given that the 1^st Applicant and her husband had ceased contact for some 9 years, the Board considered that her husband would unlikely be interested in looking for her and to harm her after her return.  Primarily for these reasons, the Board found the 1^st Applicant had failed to prove her entitlement to protection under any of the four applicable grounds under the USM.

22.  In the further alternative, on the basis of credible Country of Origin Information, the Board found that state protection of an adequate standard is available to women who face domestic violence and that she could further avoid the risk of harm by relocating to places other than her home locality.

23.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board found the Applicants had failed to prove the factual basis to support their claim for protection under any of the four applicable grounds under the USM. It therefore upheld the decision of the Director in the Notice and dismissed their appeal.

The legal principles applicable to judicial review

24.  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[8].  Thus, absent specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

25.  The Applicants did not put forward any grounds in their Form 86.  In their supporting affirmation, the 1^st Applicant complained that the Board disregarded their dangerous situation.  The Applicants had been invited by the Court via its letter dated 30 November 2020 to advise the Court of their first language, contact number and to file submissions.  They did not respond.  The letter was sent by post on 30 November 2020 to their address updated by the Immigration Department.  It has not been returned through the post.  They never informed the court of any change of address.  There is nothing to suggest that they had not received the letter or had moved.  They are deemed to have waived their right to make further submissions.   

Discussion

26.  The essence of the Applicant’s complaint is that they disagreed with the Board’s finding of fact that they will not face any real harm or risk of harm on their return to their home country.  In effect, they are seeking to challenge the Board’s finding of fact which is not permissible.  In the absence of proper grounds of application, 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.

27.  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; and observed a very high standard of fairness.  In essence, the Board found that the risk of harm the Applicants would face upon their return to Indonesia is low.  It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicants failed to discharge their burden of proving their fears and risks.  This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault.  The Applicants’ claim is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

28.  The application was more than three and half months late.  The delay was inordinate.  They could offer no valid explanation for the delay.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success.  These two factors are determinative in refusing to grant them leave to apply out of time.  It would be a futile exercise of its discretion to grant extension of time to enable the Applicants to apply for a judicial review which is bound to fail.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance.  Accordingly, 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.

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]  [2018] HKCA 549

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

[3] 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

[4] 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”)

[5] 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

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

[7] Paragraph 28.3 of the Notice

[8] [2018] HKCA 524 at [14(1)]