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HCAL611/2018
[2019] HKCFI 979
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 611 of 2018
BETWEEN
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Siti Maesaroh Sukari |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 22 September 2017 be refused; and
(2) Application for leave for judicial review be dismissed.
It is further directed that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions;
(5) Liberty to apply.
Observations for the Applicant
Background
1. The Applicant is a national of Indonesia. She is now aged 42 (DOB: 15 July 1976).
2. The Applicant claimed she would be harmed or killed by her husband Puji.
3. The Applicant said she married Puji when she was 19 years old. They had two children.
4. The Applicant came to Hong Kong to work as domestic helper in 2003. She remitted all her earnings to her husband. In July 2006, the Applicant returned to Indonesia. She found out her husband had been addicted to gambling and drinking. He spent much of the money in the Applicant’s account. There was argument between the couple. Puji was violent to the Applicant. On one occasion, he tried to slash her with a knife. The Applicant was injured in her right hand. However, she did not report Puji to the police.
5. The Applicant returned to Hong Kong in August 2006. Puji constantly asked her for money.
6. The Applicant went back to Indonesia again in September 2008. Puji behaved in the same way. The Applicant feared Puji but she did not report him to the police.
7. The Applicant came back to Hong Kong in October 2008. She stopped contacting Puji but the latter would demand money from her parents.
8. In December 2010, the Applicant returned to Indonesia. She found out Puji had borrowed a lot of money from a loan shark. She did not make repayment for Puji. Puji was angry and attacked her. He often asked the Applicant for money and assaulted her.
9. The Applicant finally asked for a divorce. One evening, Puji poured kerosene on the Applicant and threatened to burn her alive. The Applicant managed to escape. She returned to Hong Kong in January 2011.
10. The Applicant’s parents reported Puji to the police but the police said the Applicant must come to lodge the complaint herself. The Applicant was afraid. She would not go to the police. She stayed in Hong Kong when her last employment contract here was terminated prematurely on 23 March 2011.
11. The Applicant had not seen Puji again. Puji still demanded money from the Applicant through their son. He threatened the Applicant’s parents that he would kill the Applicant when she came back.
12. The Applicant overstayed in Hong Kong and raised a torture claim[1] in May 2011. She withdrew that claim in November 2012 after her parents had told her Puji had quit gambling and drinking. However, the Applicant soon learnt that was not the case. She also heard from her parents that Puji often carried a sharp knife with him.
13. The Applicant did not renew her torture claim but raised a non-refoulement claim in September 2014.
14. The Applicant said the Indonesian authorities would only help people with money or connection. She had not reported Puji to the police. She did not want him to be imprisoned for the sake of her children.
15. The Applicant said it was difficult for her to relocate to other parts of Indonesia. She also feared Puji could find her.
16. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to the remaining three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4]. [The Applicant had withdrawn her torture claim in 2012.]
17. On 11 April 2018, the Applicant applied for leave for judicial review.
Timeline
18. Things happened in this order: –
| 2003-2011 |
The Applicant came to Hong Kong to work as domestic helper. She had gone back to Indonesia at times. She last entered Hong Kong in January 2011. Her last employment contract was terminated prematurely on 23 March 2011. |
| 2011-5-26 |
The Applicant raised a torture claim. |
| 2012-11-30 |
The Applicant withdrew her torture claim. |
| 2013-1-15 |
The Applicant failed to report to the Immigration Department for recognizance. |
| 2014-9-19 |
The Applicant wrote to the Immigration Department to raise a non-refoulement claim. |
| 2014-10-24 |
The Applicant surrendered to the Immigration Department. |
| 2016-7-27 |
The Director refused the Applicant’s claim with respect to these two applicable grounds: persecution risk and BOR3 risk. [“the Director's decision’] |
| 2017-6-22 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-6 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-21 |
The Director refused the Applicant’s claim with respect to the last applicable ground: BOR2 risk. [“the Director's further decision’] |
| 2017-9-12 |
The Applicant appeared before the Board for appeal. |
| 2017-9-22 |
The Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. [“the Board's decision”] |
| 2018-4-11 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
19. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
20. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
21. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.
The Director's decision
22. The Applicant had withdrawn her torture claim in 2012. The Director refused the Applicant’s non-refoulement claim with respect to the remaining three applicable grounds: persecution risk, BOR2 risk and BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.
The Board's decision
23. The Applicant appealed to the Board. The Adjudicator interviewed her on 12 September 2017.
24. The Adjudicator did not reject the Applicant's account of events. However, he found the Applicant had not been inflicted with severe suffering. He was not satisfied Puji really meant to seriously harm or kill the Applicant. The Adjudicator did not accept the Applicant faced any real risk that warranted non-refoulement protection. He also found internal relocation was viable in the Applicant’s case.
25. On 22 September 2017, the Adjudicator refused the Applicant's appeal with respect to these three applicable grounds: persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
26. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
27. The Applicant complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. She said she was confused. The Applicant accused the Board did not make appropriate arrangement for her in relation to the hearing bundle.
28. The Applicant also complained the Board relied on outdated cases, information not officially recognized or simply hearsay.
Court hearing
29. The hearing took place on 10 September 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
30. The Applicant said a lawyer helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents.
31. The Applicant confirmed she had submitted all to the Director and the Adjudicator for their consideration of her non-refoulement claim.
32. The Applicant was late in filing the current application for leave for judicial review. She said she received the Board's decision around 22 September 2017 but she did not know she had to make the application within three months.
Discussion
33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]
Late application for leave for judicial review
35. Order 53 Rule 3(1) of the Rules of the High Court reads: –
(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
36. Order 53 Rules 4(1) and (2) of the Rules of the High Court read: –
(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
37. It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time. The Applicant must provide good reason for the Court to give an extension of time. It is a pre-requisite in late application for leave for judicial review.[8] If the court is not satisfied that there is any good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[9]
38. In the present case, the Board’s decision was issued on 22 September 2017. The Applicant only applied for leave for judicial review six odd months later on 11 April 2018. Excluding the 3-month grace period for filing, she was about three and a half months late.
39. The Applicant said she received the Board's decision around 22 September 2017 but she did not know she had to make the application within three months. That was not a good reason to explain for her delay.
40. The Applicant's delay was undue and substantial. The prejudice that would be caused to the putative respondent would not be insignificant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all.
41. The Applicant complained she received the appeal bundle only on 5 September 2017, a few days before the appeal hearing scheduled for 12 September 2017.
42. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
43. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the appeal hearing. The rules had not been breached.
44. The Applicant mentioned she was not legally represented then. She had been represented by the Duty Lawyer Service up to the Director’s decision dated 27 July 2016.
45. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.[12] The Applicant failed to show how her case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process.
46. The Applicant admitted she had a lawyer to prepare Form 86 and the affirmation for her. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
47. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim by the immigration officer. There was no evidence to show the appeal bundle was difficult or voluminous.
48. A few days were certainly not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. There is no evidence that she had so complained to the Adjudicator or asked for adjournment during the appeal hearing.
49. The Applicant said she answered all the questions in the Board hearing honestly.[13] That means she knew what was asked and how to answer then. She was not confused.
50. There was no evidence the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.
51. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
52. The current application for leave for judicial review is late. The Applicant fails to show any good reason to justify her delay. There are no circumstances that oblige the court to consider her late application. I therefore dismiss her application for leave for judicial review.
Dated the 30th day of April 2019
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(Henry Ng)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 30/4/2019
Siti Maesaroh Sukari
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4339/16/8/58/I401
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 433/16 & RBCZ 9002467/17 (formerly RBCZ 31/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 110/2016 Kwok Cheuk Kin, para 17.
[9] Ibid., para 19.
[10] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[11] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[12] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[13] The Applicant's affirmation, Point 8 on Page 4.
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