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

HCAL 543/2019

[2022] HKCFI 741

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 543 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;

Leave to apply for Judicial Review refused.

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

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) allegedly dated 24 September 2018.  As will become clear below, the decision in respect of which the Applicant seeks judicial review was made on 11 July 2018 (the “Decision”).  The Applicant filed her application for judicial review on 26 February 2019.  She is four and a half months late.  Leave to apply out of time is required.

2.  The Applicant is an Indonesian national, now aged 40.  She last arrived in Hong Kong on 22 November 2012 and was permitted to work as a foreign domestic helper.  However, her contract of employment was prematurely terminated on 10 December 2012 and she over-stayed since 25 December 2012.  She lodged her application for non-refoulement protection on 10 March 2014, claiming that she is at risk of being sold as a prostitute or even killed by loan sharks if returned to Indonesia.

3.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the Notice dated 21 February 2018, the Director of Immigration (the “Director”) rejected her claims.  She filed an appeal to the Board on 28 February 2018. 

4.  On 4 June 2018, the Applicant wrote to the Immigration Department to withdraw her claim because she was then pursuing her application for a dependent visa under the sponsorship of her husband.  The letter was referred to the Board. 

5.  On 22 June 2018, the Board wrote to the Applicant acknowledging receipt of her letter dated 4 June 2018 and informed her that unless she advised the Board otherwise, the Board presumed:

(a)   she was applying to withdraw her appeal against the Director’s decision in the Notice;

(b)   she considered it safe for her to return to Indonesia; and

(c)   she understood the consequences of the proposed withdrawal (ie once the withdrawal is confirmed, her appeal will be dismissed and the Director’s decision in the Notice will be confirmed; her appeal would be disposed of and finally determined by the Board; and no further action will be taken by the Board in relation to her appeal).

The Board also advised her to seek independent legal advice on the consequences of the proposed withdrawal and that if it did not receive any reply from her on or before 29 June 2018, the Board will consider approving her application for withdrawal.

6.  The Applicant did not respond.  Thus, on 11 July 2018, the Board issued a letter informing her that her application to withdraw had been allowed and the Director’s decision in the Notice is confirmed.

7.  Two months later, the Applicant wrote to the Board on 20 September 2018 seeking to re-open her appeal on the ground that her problem in Indonesia still exists.  On 24 September 2018, the Board replied that her appeal had been disposed by its Decision dated 11 July 2018; had been finally determined; and that no further action will be taken by the Board.  The Applicant now seeks to apply for judicial review of that Decision.

8.  Under Order 53, rule 4(1) of the Rules of the High Court, 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.  As the Decision sought to be reviewed was made on 11 July 2018 and the application for leave to apply for judicial review was made on 26 February 2019, it was four and a half months out of time. 

Applicable legal principles

9.  A delay of three months in making an application for judicial review is usually considered to be an undue delay.   In AW and Director of Immigration & Anor[5], the Court of Appeal held that in considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will take into court will take into account:

(1) the length of delay;

(2) explanation for the delay;

(3) merits of the intended application;

(4) prejudice to the applicant vis-à-vis that to respondent if an extension of time is refused or granted; and

(5)  whether the application raises any question of general public importance.

In considering the merit of the intended judicial review, it must be borne in mind that the role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (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.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Length of delay and reasons for the delay

10.  The application was four and a half months out of time.  The delay is substantial whether in terms of duration or in the context of the time limit of three months for making the application. 

11.  In her supporting affirmation, the Applicant said that she withdrew her appeal on the suggestion of her solicitors as she was applying for dependent visa sponsored by her (new) husband.  Then, when her visa application was refused and the Immigration Department threatened to send her back to Indonesia, she sought to re-open her appeal.  Her application to withdraw the appeal was a conscious decision to defer or delay her appeal for tactical reasons.  There was no reason why her visa application could not proceed in parallel with her appeal.  That also suggests that she did not have a valid ground of appeal.

12.  Then the Applicant attempted to paint a picture that she had never received the Decision, but was only informed about it when reporting to the Immigration Department in Tuen Mun.  She said she was told to go to the Board to collect a copy of the Decision.  That clearly is a false explanation.  It was she who applied to re-open her appeal. She must have received the Decision informing her that her appeal had been withdrawn.  She was unable to proffer any credible explanation for the substantial delay.

The Applicant’s case for protection

13.  The Applicant is now aged 40.  She claimed she was married and has two children born in 2002 and 2007.  She had to work as a domestic helper to help her husband financially. Her in-laws also supported him.  Her relationship with her husband was not harmonious.  Her husband abused her verbally and sometimes assaulted her.  In 2009, her husband absconded.  The Applicant and her children went to live with her in-laws.  But they did not support her well.  

14.  In early 2010, three men who identified themselves as loan sharks came to the in-laws’ house.  They demanded the Applicant to repay them 40 million Indonesian Rupiah owed to them by her husband.  They threatened to sell her as a prostitute if she could not pay.

15.  The Applicant was terrified.  She and her two children went to Selomerto to stay with her parents.  Nothing eventful happened in Selomerto.  In February 2012, the Applicant left Indonesia to work in Hong Kong as a foreign domestic helper.

16.  The Applicant’s marriage formally came to an end when her husband remarried on 19 May 2014. However, her ex-in-laws still urged her to repay his debt to the loan sharks.

17.  The Applicant said that the police will not protect her for she could not pay a bribe and that she could not relocate to another part of Indonesia because the loan sharks could find her with their network.

The Decision of the Director

18.  The immigration officer considered the intensity and frequency of past ill-treatment to the Applicant to be low.  The Applicant only had one bitter experience with the loan sharks. On that occasions, the loan sharks were not carrying any weapons and she did not receive any physical harassment.  Based on credible and authoritative Country of Origin Information (“COI”), the immigration officer was also satisfied that state protection of a sufficient standard is available and that the Applicant could avoid the harm by internal relocation.  Hence, he refused the Applicant’s claim based on Torture Risk ground.

19.  For similar reasons, the immigration officer was not satisfied that the ill-treatment she would face attains a minimum level of severity and that she faces a genuine and substantial risk of being subjected to such ill-treatment, if returned to Indonesia.  Hence he refused her claim based on BOR 3 Risk ground.

20.  There is no issue about a death sentence being imposed on the Applicant.  Hence BOR 2(ii) Risk ground is not engaged.  The immigration officer was not satisfied that that the Applicant has established a personal and real risk of being arbitrarily deprived of her life in violation of BOR 2(i) upon her return to Indonesia.

21.  The Applicant’s dispute with the loan sharks is clearly a personal one not related to any of the protected grounds under Persecution Risk ground, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.  Hence, he refused her claim based on Persecution Risk ground.

Grounds of the intended Judicial Review

22.  The Applicant advanced the following four grounds for judicial review in her supporting affirmation:

(1)   “Procedural Impropriety) Failure to properly apply para 2 of the UN committee against Torture General Ground No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event”

(2)   “Procedural Impropriety/Irrationality) Failure to reasons for assessment of Lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk.”

(3)   “Error/Misdirection in law) Failing to take into account to considerations of psychological strain and threats to me personally or threats to me directly to kill me.”

(4)   “No sufficient basis to conclude that I would not be at risk of being subjected to torture and or /CIDTP upon refoulement.”

23.  These grounds are not entirely comprehensible.  The Applicant was asked to expand and explain the meaning of these grounds.  She gave inconsistent answers.  On the one hand, she said that the grounds were prepared by her and she asked someone to type them for her.  On the other hand, she said she paid her lawyer to settle the grounds and she did not understand what they were about.  These grounds are therefore quoted verbatim.

Ground (1) – Procedural impropriety: COI

24.  The Applicant confirmed that this ground is directed at the Decision being made without a hearing. Insofar as the Decision of 11 July 2018 is concerned, it was made on the application of the Applicant without a hearing.  The Board granted her what she asked for.  Before making the Decision, the Board had informed her: (1) what the Board understood she was applying; (2) that she did so on the basis that it was safe for her to return to Indonesia; and (3) that she understood the consequences of the proposed withdrawal.  The Board gave her time to re-consider her application.  Then, it was upon satisfying itself that her decision was freely and voluntarily made that the Board granted her application.  There could be no valid basis to challenge the Board’s Decision under this ground.

25.  Assuming the writer was incapable of expressing himself or herself, an objective reading of this ground suggests that the complaint is about the Board failing to satisfy itself that state protection is available in Indonesia and failing to ensure that the protection is effective.  The Board did not make any express finding on this issue but confirmed the decision of the Director in the Notice.  In this connection, the Director had referred to the COI when making its finding that state protection of a sufficient standard is available and that the Applicant could avoid the harm or threat by internal relocation.   The COI relied on by the Director are all from authoritative and credible sources, including Freedom House Report 2016, Country Report on Human Rights Practices 2016 – Indonesia and The Indonesian Corruption Eradication Commission (KPK) published by the Department of States of the United States; The World Factbook for Indonesia published by the Central Intelligence Agency of the United States; The Economist; Indonesia Highlights published by OECD Open Government Review; and The UNHRC National Report 2012 published by United Nations Human Rights Council.  Other than a bare assertion of failure in conducting sufficient due diligence inquires, the Applicant gave no particulars or supporting evidence of the inadequacies of the Director’s inquiries and what proper inquiries would have revealed.  This ground is a challenge of the Board’s finding of fact which is not open to the Applicant unless the finding is vitiated by error of law, procedural unfairness or irrationality.  The Court would consider this issue in its overall examination of the Decision.

Ground (2) – Procedural Impropriety/Irrationality: BOR 3 Risk

26.  The Applicant said she did not know what this ground means.  Doing its best, the Court assumed that she is criticising the finding of lack of risk to support a claim under BOR 3 Risk ground.  The immigration officer devoted more than five pages discussing this risk under Torture Risk ground and again under BOR 3 Risk ground.  He was satisfied from credible COI that state protection of a sufficient standard is available and that the Applicant could avoid the alleged harm by internal relocation.  Hence, he refused the Applicant’s claim based on Torture Risk ground.  He set out his reasons why he was not satisfied that the ill-treatment the Applicant would face would attain a minimum level of severity and that she would face a genuine and substantial risk of being subjected to such ill-treatment, if returned to Indonesia.  This ground is also a challenge of the Board’s finding of fact.  The Court would consider this issue in its overall examination of the Decision.

Ground (3) - Misdirection in law - Failing to take into account psychological strain and threats

27.  The Applicant accused the Director of failing to take into psychological strain and threats exercised on her.  But she confirmed that she had not made any complaint about psychological strain and threat to the immigration officer, though she had previously made such complaints to UNHCR.  This ground is not substantiated.

Ground (4) – No basis to support finding of lack of ill-treatment

28.  This ground is a also challenge of the Board’s finding of fact.  The Court would consider this issue in its overall examination of the Decision.

Prospect of the intended appeal

29.  There is a total lack of factual or evidential basis to support any of these grounds.  These grounds are challenges to the Director’s finding of fact which is not open to the Applicant unless the finding is vitiated by error of law, procedural unfairness or irrationality.  No such argument has been advanced.

30.  Having rigorously examined the Notice, the papers and the evidence with anxious scrutiny, the Court was satisfied that the immigration officer 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; correctly identified the issues and observed a very high standard of fairness.  The immigration officer assessed the Applicant’s harm and risk on the basis of her evidence and objective COI.  It must be on that basis that the Board upheld the Director’s finding that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  These are findings of fact which are exclusively within the province of the decision maker, ie the Director, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court was satisfied that the immigration officer made no error of law and committed no procedural unfairness in reaching the decision in the Notice; and neither did the Board when confirming the Director’s decision in the Notice.  The Director’s decision in the Notice and the Board’s Decision to allow the withdrawal and to confirm the decision of the Director in the Notice did satisfy the enhanced Wednesbury test.  They were not Wednesbury unreasonable or irrational.  The decisions were utterly without fault.  The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Prejudice to the respondent

31.  As for prejudice to the proposed respondent, it is unlikely that this issue would be explored in an ex parte application for extension of time.  The prejudice to the proposed respondent and to public administration if a challenge is allowed to proceed is obvious.  The delay is by itself an abuse of the process of the court and the non-refoulement protection arrangement.  To allow the challenge to proceed would encourage other claimants to indulge in such abuse.  It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect people from persecution, torture and other cruel, inhuman or degrading treatment or punishment.  This application does not raise any questions of general public importance.  Allowing the application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

32.  The Applicant’s delay was substantial and she could offer no reasonable explanation for the delay.  Her intended judicial review has no prospect of success.  To allow her to proceed to challenge the Decision when there is no prospect of success is by itself an abuse of legal process and will occasion prejudice to the intended respondent.  Accordingly, her application for leave to apply out of time will not be given and her application for leave to apply for judicial review is 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] 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

[2] 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”)

[3] 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

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

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