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

HCAL 1509/2021

[2021] HKCFI 3859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1509 of 2021

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 September 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.  The applicant is now being detained in the detention centre of the Immigration Department.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 10 October 2012.  However, after her employment contract was terminated prematurely, she did not leave Hong Kong within the time limit.  On 24 March 2014, she was arrested by the police and lodged a non-refoulement claim on 27 March 2014.  

5.  The applicant claimed that, if refouled, she would be harmed or killed by her husband.  According to the applicant, her husband was abusive when he was drunk.  He often hit or slapped her.  From 2006 to 2013, she was assaulted and threatened by her husband for not giving him money and for wanting to divorce him because of his extramarital affairs.  Out of fear, she fled to Hong Kong for protection.  Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

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

a.     risk of torture under Part VII C 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”).

7.  By Notice of Decision dated 27 December 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed or killed by her husband was assessed to be low [11]-[12]; that state protection would be available to her [13] and that internal relocation was an option open to her [14].

The Board’s Decision

8.  On 27 July 2021, the applicant wrote a letter of inquiry to the Board asking for “help for late filing of my appeal petition” [4].  After the Board’s explanation on the procedures for lodging an appeal, the applicant filed her notice of petition/appeal on 12 August 2021 without the Director’s Decision.  The Board then made enquiry with the duty lawyer acting for her and ascertained that the Director’s Decision was duly served on his duty lawyer, who had explained it to her.

9.  As the applicant’s notice of petition/appeal was filed after 1 August 2021, the Board concluded that the newly amended statutory provisions of the Immigration Ordinance, Cap.115 (“IO”) applied [2]-[3];[19]-[20].  Thus, the amendments would take effect when the Board considered the applicant’s late filing.  According to s.37ZT of the newly amended IO, the Board interpreted it as removing the need for the Board to consider the merits of the applicant’s claim when deciding whether to exercise discretion to extend time [25]-[30].  The Board focused on the applicant’s explanation for delay and found that (1) the Director’s Decision was properly served on the applicant on 29 December 2018 and that she had ample time to file her appeal on or before 12 January 2019 [32] and that (2) her explanation of moving house and losing all her documents was unacceptable [31]-[37].  As a result, the Board concluded that the applicant failed to exercise due diligence in filing her notice of appeal and there was no circumstance beyond her control which would render her lateness inevitable [38]. 

10.  In passing, the Board in its decision attached an Appendix II that, should the Board be wrong in concluding that the Board did not have to assess the merits of the applicant’s claim, it found that the applicant had not made out her appeal against the Director’s Decision as there was no viable ground to challenge the Director’s findings on the state protection and internal relocation alternatives.  Thus, the Board refused to allow the applicant’s late filing.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 1 November 2021 for leave to apply for judicial review of the Board’s Decision.

12.  In her affidavit in support of her application, the applicant did not set out any specific grounds for her application.

DISCUSSION

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.  I have considered the amended version of section 37ZT, which provides:

“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 all available evidence relied on in support of the reasons referred to in paragraph (a). (Amended 7 of 2021 s. 19)

(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 the statement of reasons stated in the application for late filing of the notice of appeal and the evidence relied on in support of the reasons. (Amended 7 of 2021 s. 19)

(3) The Appeal Board may allow the late filing of the notice of appeal if the person filing the notice provides sufficient evidence in writing to satisfy the Board that the person—

(a) had exercised all due diligence to file the notice within the period specified in section 37ZS(1); but

(b) failed to file the notice within the period because of circumstances beyond the person’s control. (Replaced 7 of 2021 s. 19)

(4) For the purposes of subsection (3), the fact that a person attempted to file one or more notices of appeal that do not comply with section 37ZS(2)(a) or (ab), whether within the period specified in section 37ZS(1) or otherwise, must not be taken as evidence that the person had exercised all due diligence to file a notice of appeal within the period. (Replaced 7 of 2021 s. 19)

(5) If the Appeal Board allows the late filing of the notice of appeal, it must, by written notice to the person filing the notice, inform the person of the Board’s decision. (Added 7 of 2021 s. 19)

(6) If the Appeal Board does not allow the late filing of the notice of appeal, it must, by written notice to the person filing the notice—

(a) inform the person that the Board refuses the notice as it is filed out of time; and

(b)   give reasons for the refusal. (Added 7 of 2021 s. 19) ”

17.  I am also satisfied that the Board, in refusing to extend time for the applicant to file her Notices of Appeal with the Board, had duly consider the merits of the applicant’s case and other relevant circumstances in accordance with the directions of the Court of Appeal in Khan Kamal Ahmed [2019] HKCA 377, §§17 & 20.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.  I refuse grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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