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

HCAL431/2017

[2018] HKCFI 711

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 431 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

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

1.  The applicant is an Indonesian national who last arrived in Hong Kong on 28 December 2014 to work as a domestic helper but her contract was prematurely terminated on 22 January 2015 but she did not depart on or before 5 February 2015 as required. She overstayed and surrendered to the Immigration Department on 16 April 2015 and then lodged a non‑refoulement protection claim.  The applicant in fact had been working here as a domestic helper since January 2007.

2.  The Director of Immigration (“the Director”) rejected her claim on 19 November 2015 and 24 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 15 February 2017.  The applicant filed a notice of application for leave to apply for judicial review on 20 July 2017.  The applicant was given an oral hearing on 15 December 2017 and she appeared in person.

Extension of time refused

3.  The applicant has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4.  She is, in fact, just over two months late.  Her notice of application does not set out the reasons for the delay as it should.  She had no explanation during the hearing why it was delayed and late, she asked for an adjournment to give her time to give the court a reason for the delay which I did not consider necessary.

4.  I have considered the legal principles for granting an extension of time for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

5.  The delay is not insignificant and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak. Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

6.  The basis of her claim was that if she were to return to Indonesia she would be harmed or killed by her parents because she refused to accept an arranged marriage and then later she married a Pakistani man in Hong Kong.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only need summarise it here.  The applicant went home for a holiday in 2009 to discover that her parents had arranged a marriage for her with a man she had never met.  She only knew he was a Muslim and a farmer.  She refused this arrangement because she wanted to marry a man she loved.  Her father was very angry and disowned her; he chased her out of the house with a machete and she has not seen her immediate family since.

7.  In 2010 she met her husband in Hong Kong, a Pakistani asylum seeker and they married in 2011.  They now have three young children together, all born in Hong Kong.  Their children are seeking asylum under his claim not hers.  His claim is presently being considered. She is sure that her father will harm or kill her if she returns home and he finds out that she has married a Pakistani man.  The applicant cannot accept that she will have to return home without her husband or children as they are very young.  She believes the Indonesian authorities will not protect her as she has no money to bribe them.  She has no resources or connections to relocate in Indonesia.

8.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) 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, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

9.  The applicant has proposed both the Director and the TCAB as respondents as well as interested parties but in her very brief affirmation she submits that she is not satisfied with the TCAB.  She does not set out any grounds against the TCAB in her affirmation.  She makes no mention of the Director in it.  I only propose to consider her application against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  She should have covered all mistakes she says the Director made in her appeal to the TCAB. In any event, the TCAB would have looked at it to ensure no errors as it treated her appeal/petition as a rehearing. There is no room for a judicial review of the Director’s decision.

10.  The adjudicator ordered an oral hearing. He set out the applicable law and key legal principles for the four grounds.  He considered objective Country of Origin information and found State protection available to the applicant as well as internal relocation a viable option for her.

11.  He considered the applicant’s evidence and applied the law to it.  Even on her own facts, he concluded that she failed to establish a case of non-refoulement under any risk claim be it a risk of torture or BOR 2 or BOR 3 or persecution.  He confirmed the decision of the Director.

Leave to apply for judicial review

12.  The applicant had no grounds in her affirmation and was given an opportunity in open court to make submissions.  Her only submission was a desire that her claim and her husband’s claim be considered/joined together.  The court tried to ascertain from her (and her husband who accompanied her to court) if they had made this application to the Immigration Department or approached the Immigration Department with this request but could make no sense of the explanation offered.  In any event, it was not applicable or relevant to this application or the TCAB decision against this applicant.

13.  I have to consider each application and decision with rigourous examination and anxious scrutiny. Even though I have said this application only applies to the TCAB decision, I have considered the Director’s decision and found no error in the decision making process. I sympathise with the predicament the applicant finds herself in with a young family in Hong Kong with a husband in the same situation as her but from another country but she has not put forward any grounds to show that the adjudicator has made any error of law in analysing the applicant’s claim under the applicable grounds.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applied to the decision of the Director.

14.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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