TASINAH v. TORTURE CLAIMS APPEAL BOARD

HCAL 2914/2019

[2024] HKCFI 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2914 OF 2019

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 / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review be granted;

2.  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 23 November 2018 be granted;

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

4.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 8 November 2013 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 8 November 2015 or within 14 days of its early termination, but when it was prematurely terminated on 28 February 2015, she did not depart and instead overstayed, and was arrested by police on 23 February 2017 for which she was subsequently convicted and sentenced to prison for 2 months, during which she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by a fellow villager for refusing to marry him and to convert her religion from Islam to Christianity. She was subsequently released on recognizance upon her discharge from prison and pending the determination of her claim.

2.  The Applicant was born and raised as a Muslim in Cilacap, Central Java, Indonesia. After leaving school she assisted her parents who were farmers in their home village selling their farming produces and vegetables.

3.  In 2008 the Applicant made arrangements to come to Hong Kong to work as a foreign domestic helper, and while receiving training in Jakarta, one of her former schoolmates Nuryanto, who was also the son of the wealthy owner of the farmland where her father worked, proposed to her parents to marry the Applicant, and that upon becoming his wife that she should convert to his religion as a Christian.

4.  Nuryanto’s marriage proposal was agreeable to her parents, but was objected by the Applicant in particularly about converting her religion, and to avoid Nuryanto she decided to remain in Jakarta and expedited her arrangements to leave the country, which she subsequently did on 19 February 2009 when she departed for Hong Kong to start her first employment.

5.  In 2010 when she returned to Indonesia for holiday, Nuryanto again pressed the Applicant with his marriage proposal, and when she explained that she would not be prepared to convert her religion to Christianity even if she were to marry him, Nuryanto became furious and threatened to kill her and her parents if she refused to do so, and when her brother tried to intervene, he was beaten by Nuryanto’s bodyguards.

6.  As she became fearful for her life, the Applicant immediately returned to Hong Kong to continue with her employment, during which she heard from her parents that Nuryanto had continued to make threats against her over her refusal to marry him and to convert her religion, and so when her last employment was prematurely terminated on 28 February 2015, she was afraid to return to Indonesia and therefore overstayed in Hong Kong, and after her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  While being released on recognizance pending the determination of her claim, the Applicant was again arrested by police on 13 September 2017 for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 13 months at Lo Wu Correctional Institution.

8.  By a Notice of Decision dated 1 February 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from Nuryanto upon her return to Indonesia as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of Nuryanto to seriously harm or kill her other than to press her to marry him or that he would still have any interest in her all these years since she left the country, that in any event it was a private relationship dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where she had stayed before without incidents and where it would be difficult if not impossible for Nuryanto to locate her.

10.  On 1 March 2018 the Applicant while serving her imprisonment in Lo Wu Correctional Institution lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but as it was deemed to have been filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and for which she was required by Section 37ZT(1) of the Ordinance to include an application for late filing of her notice of appeal with a statement of the reasons for the delay but which she failed to do so, and so her Notice of Appeal was returned to her by the Board to comply with the requirements.

11.  On 14 May 2018 the Applicant re-filed her Notice of Appeal with a completed section 5 in which she stated as follows:

“I wish to file my late Appeal/Petition to your office for the reason of I failed to complete the answer for my submission form and filed it in your office incomplete without knowing that it will be consider (sic) null and void. I’m hoping for a consideration from you in my late appeal/petition. And I’m asking for your help/protection regarding my case status.”

12.  It will be relevant to also note that in section 2 of the Notice of Appeal, the Applicant did set out her grounds of appeal which were essentially details of her non-refoulement claim as previously disclosed in her NCF to the Director.

13.  In pursuance of Section 37ZT(2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a Decision dated 23 November 2018 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding no explanation in either Notice of Appeal as to why she was not able to file it within the prescribed 14-day period, and that it was not satisfied that by reason of any special circumstances that it would be unjust not to allow the late filing of her Notice of Appeal ([4]-[5] of the decision).

14.  On 3 October 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision without putting forth any ground for her intended challenge, nor did she request any oral hearing for her application.

15.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

16.  As the last day of the three-month period for her to file her form 86 fell on 23 February 2019, the Applicant was therefore some 7 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

17.  In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, nor did she request any oral hearing for her application. As such, and while it appears that she was earlier still being detained at Lo Wu Correctional Institution but has since been released, and in the absence of any further information or explanation from her, I am unable to see any valid explanation or justification for her such serious delay.

18.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, but given the seriousness of the issue at hand and the implication of denying her of the second-tier screening process of her non-refoulement claim by the Board under the Unified Screening Mechanism (“USM”) due to a procedural breach, and in which it was said that her life and limbs are at stake, the Court shall adopt an enhanced standard in scrutinizing the Board’s reasons for refusing to allow the late filing of her notice of appeal.

19.  As noted above in [13], the Board refused to allow the late filing of the Applicant’s Notice of Appeal after finding no explanation from her as to why she was unable to file it within the prescribed 14-day time limit, and that on the basis of all the information before the Board that there were no special circumstances that would make it unjust not to allow the late filing of the Notice of Appeal.

20.  In arriving at such decision, however, the Board did not appear to have made any factual finding as to the length of the delay or made any inquiry into the circumstances the Applicant was then in which might have caused or contributed to such delay, which were in my view clearly matters relevant to its exercise of the discretion whether to allow the late filing of the Notice of Appeal.

21.  When the Notice of Appeal was first received by the Board on 1 March 2018, and on the basis that it was sent to DLS on 1 February 2018, the delay would have been 14 days, and given the fact that the Applicant was at that time in prison at Lo Wu Correctional Institution which was well within the Board’s knowledge as it was so stated in her Notice of Appeal and then recorded in the Board’s decision (see [5] of the decision), one can reasonably presume that someone like the Applicant in her situation might or would have more hurdles or difficulties in seeking assistance and arranging for her Notice of Appeal to be properly prepared, including to complete section 5 to provide a statement of her reasons for failing to file the Notice within the required period which she claimed not to have known, before filing it with the Board that her delay might not after all be considered as without explanation or as serious or substantial. As such, and as the Board did not appear to have made any such inquiry or taken such matters into account or consideration, it seems to me reasonably arguable that the Board had failed to apply high standards of fairness in deciding not to allow the late filing of the Applicant’s Notice of Appeal for its reasons as stated.

22.  More significantly, it seems also clear that the Board also failed to take into account the merits of the appeal which the Court of Appeal has found to be part of the relevant matters within the knowledge of the Board under Section 37ZT(2)(b) of the Ordinance, as it held to be relevant in Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, and Re Qasim Ali, CACV 547/2018 [2019] HKCA 430, 8 April 2019, as Lisa Wong J in giving judgment of the Court in the latter case explained:

“23. … even where there is a serious or significant breach for which no good reason is given, the decision maker should move to evaluate all the circumstances of the case that he knows of.

24. In identifying what circumstances are relevant, it is imperative to bear in mind that the discretion to allow the late filing of a notice of appeal is exercisable when it would be “unjust” not to do so by reason of “special circumstances”: see s 37ZT(3) of the Ordinance.

25. It is in this connection that we cannot agree with the Board or the judge that merits need not or should not be considered (see Board’s Decision at [21] and Call-1 Form at [37]). In our opinion, it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious. Indeed, nothing would be more unjust.

26. The Board should have, under s 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal (albeit on paper without a hearing) regardless of the procedural breach or the lack of explanation therefor. See Re Khan Kamal Ahmed, CACV 563/2018 [2019] HKCA 377, 2 April 2019, [16]-[20].

27. For these reasons, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.”

23.  In the premises, and for the same reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds (i) that the Board failed to make any or proper inquiry as to the Applicant’s delay in the filing of her Notice of Appeal and/or to apply high standards of fairness in deciding not to exercise its discretion to allow the late filing of her Notice of Appeal; and (ii) that the Board failed to consider the substance of the Applicant’s non-refoulement claim and/or the merits of her appeal which are relevant matters of fact within the Board’s knowledge under Section 37ZT(2)(b) of the Ordinance, thus meeting the threshold for leave to be granted as laid down by Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

24.  Accordingly, I extend time to the Applicant’s late application, and to grant her leave to apply for judicial review of the Board’s decision on the grounds stated above, and direct that she shall file and issue her originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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