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

HCAL 1447/2020

[2024] HKCFI 398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1447 of 2020

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:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 July 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 7 May 2020 (the “Decision”) refusing her application for late filing of Notice of Appeal (“NOA”) against the decision of the Director of Immigration (the “Director”) in his Notice of Decision 5 December 2018 (the “2018 Notice”). 

2.  The Applicant is an Indonesian national, now aged 38.  She entered Hong Kong on 17 March 2011 to work as a foreign domestic helper.  Her contract was terminated prematurely.  She was allowed to remain in Hong Kong as a visitor until 28 July 2011.  She overstayed and was arrested on 29 July 2011. 

3.  On 11 July 2013, she raised a claim for protection from cruel, inhuman or degrading treatment or punishment (the “Torture Claim”) which was rejected by the Director’s decision in his Notice of Decision dated 25 June 2013 (the “2013 Notice”).  Her application for late filing of a Notice of Appeal against that decision was refused by the Board on 23 July 2013.  The present leave application is not related to those decisions of the Director or the Board.

4.  Following the implementation of the Unified Screening Mechanism (“USM”), the Director proceeded to assess the Applicant’s claim on the remaining three applicable grounds under the USM, namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. Her claim was dismissed by the Director’s 2018 Notice.  About half a year later, she made an application for late filing of NOA against the 2018 Notice. Her application was refused by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

5.  In gist, the Applicant claims, if returned to Indonesia, she would be harmed or ill-treated by her uncle (“Uncle Gabriel”) who demanded her to repay the expenses he had incurred for the funeral of her late mother.  The ill-treatments included physical threats, assaults, a week’s detention and three rapes while she was a child living with him before 2000.  Her fear and risk of harm were heightened by her claim that Uncle Gabriel had murdered his own brother because of a monetary dispute. 

6.  The Applicant’s claim under Torture Risk ground and under the three remaining grounds were assessed by two different immigration officers.  Their findings are similar.  Though both officers found the Applicant incredible, they assessed her claim on the basis that the events she relied on were true.  The ill-treatments were inflicted before 2000 while the Applicant was under fifteen and living with Uncle Gabriel.  She did not seek medical treatment.  The injuries self-healed and she suffered no permanent difficulties as a result.  Hence, the immigration officers considered the injuries were not serious.  As for the rapes, they took place before 2000 when the Applicant was living with Uncle Gabriel.  Since moving to live with another uncle, Uncle Michael, she had never been raped again.  On Uncle Michael’s advice, the Applicant went to work in Singapore and later in Hong Kong to stay away from Uncle Gabriel.  As Uncle Gabriel had not caused her any serious harm in the past, the immigration officers found Uncle Gabriel had no intention to cause her serious harm or to kill her if her returns to Indonesia.  Further, as the Applicant had ceased contact with Uncle Gabriel since 2001, the immigration officers considered the animosity Uncle Gabriel had harboured against her would have dissipated with time and now Uncle Gabriel would have no reasons to pursue her.  Hence, the immigration officers found the Applicant would not face any real risk of harm upon her return to Indonesia.  On the basis of authoritative and credible country of origin information (“COI”), the immigration officers were satisfied that adequate state protection would be available to the Applicant and internal relocation feasible to prevent, minimise and negate the risk of harm she would face on her return.  Hence, the Director found the Applicant was not entitled to protection under any of the three remaining applicable grounds under the USM.

The relevant legal provisions relating to late filing of NOA

7.  Under the non-refoulement protection regime, a claimant aggrieved by the decision of the Director may appeal that decision by filing a NOA with the Board within 14 days after the Notice of Decision was served on him: Section 37ZS(1) of the Immigration Ordinance (the “Ordinance”) and Paragraph 8.1 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme (the “Petition Guide”).  Failing that, he may also make a late filing, pursuant to Section 37ZT(1) of the Ordinance, by giving a statement of the reasons for his failure accompanied by all available supporting evidence.  For that purpose, Section 5 of the NOA form is designed as an application for late filing for the claimant to state the reasons for his failure when filing the NOA. 

8.  Section 37 ZT(2) of the Ordinance and Paragraph 9.2 of the Petition Guide mandate the Board to decide, as a preliminary decision without a hearing, whether to allow the late filing.  The subsection also requires the Board to only take account of the statement of reasons stated in Section 5 of the NOA and the supporting evidence relied on.  Under Section 37ZT(3) of the Ordinance and Paragraph 9.3 of the Petition Guide, the Board may allow late filing if the claimant has provided sufficient evidence in writing to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control. 

The Applicant’s explanation for the delay

9.  In Section 5 of the NOA, she gave the following explanation for the late filing:

“I received letter rijecting my re-open USM on 27-03-2019 But I did not recived (sic) Appeal form – in 14-03-2019 sand. 19 marck 2019 I send letter to Wanchai. I try ask Appeal Form But now I dit not get reply now in 21-05-2019 I get the document. So I am sorry Sir/Madam can accept my reason. Thank you for understanding my condition and thank you so much for your kindly and your consideration.”

Despite the difficulties in the expression, the Board understood the Applicant’s explanation to be that she received the 2018 Notice on 27 March 2019, but without a blank NOA.  She wrote to the secretariat of the Board on 14 and 19 March 2019 to request for a blank NOA.  But it was only until 21 May 2019 that she obtained a copy.  Impliedly, she had not received the 2018 Notice on or around 5 December 2018, the date as stated therein.  She only received a blank NOA on 21 May 2019 upon her request so as to enable her to appeal.

The finding of the Board

10.  The Board accepted that the Director served the 2018 Notice on the Applicant on the date of the Notice, ie 5 December 2018, care of the Duty Lawyer Service (“DLS”) then representing her.  It noted the correspondence between the Applicant and the secretariat between 14 March and 21 May 2019.  Piecing all these information together, the Board found what transpired between 5 December 2018 and 22 May 2019 were as follows.

11.  The 2018 Notice was served on the Applicant on 5 December 2018 care of DLS.  The Applicant took no steps to appeal the notice.  On 6 March 2019, ie about three months later, she was held in immigration custody in Castle Peak Bay Immigration Centre.  Then, she applied to the Board by letters dated 14 and 19 March 2019 to “re-open” her non-refoulement claim.  She was informed by the secretariat on 11 April 2019 that her application was treated as a nullity as it was not made on the prescribed form.  On 10 May 2019, the Applicant requested the secretariat for a copy of blank NOA.  A blank copy was sent to her on 17 May 2019.  It was completed and returned to the secretariat by her on 22 May 2019.

12.  Under section 37ZV(3), the 2018 Notice was deemed to have been served on the Applicant on the second day after posting, ie 7 December 2018.  The last day for filing the NOA fell on 21 December 2018.  In normal course, the notice would have been given and explained to the claimant by DLS soon after it was received from the Director; and DLS would have advised an appeal if there are meritorious grounds for appeal.  The Applicant gave no conceivable reason why she had not received the 2018 Notice on or around 5 December 2018, nor could the Board find any.  The Board did not accept her mere assertion that she had not received the Notice and a copy of blank NOA.  Hence, it found the Applicant had been served the 2018 Notice and the NOA was lodged five months and one day out of time.

13.  The Board adopted the three stage approach as laid down by the English Court of Appeal in The Secretary of State for the Home Department v Begum[4] to determine whether to allow extension of time to enable a litigant to take any procedural steps out of time.  Under the first stage, the Board found a delay of five months and one day in the context of a fourteen-day period for filing the NOA a serious and significant failure to comply with the rules. 

14.  The 2018 Notice expressly stated that a claimant aggrieved by the Notice must file the NOA within 14 days of the date of the Notice and that a blank NOA was attached to the Notice.  The address for filing of the NOA was also stated in the Notice.  The Applicant had been duly informed of the procedure for prosecuting her appeal.  At the time she received the 2018 Notice, she had legal representation from the publicly funded DLS.  If she was minded to appeal, there was no conceivable reason why she did not do so forthwith but waited until 14 and 19 March 2019 when she took her first step to “re-open” her claim.  That was after she had been held under immigration detention when her removal was imminent.  Having rejected her bare assertion that she had never received the 2018 Notice or a blank NOA for her to lodge her appeal, the Board found under the second stage of the Begum test that the Applicant had no good reason for the breach of the rules. 

15.  Under the third stage of the Board had regard to the fact that the Applicant’s Torture Claim had been rejected by the Director by his 2013 Notice and her late filing of NOA against the 2013 Notice had been refused by the Board.  That decision and the facts found in the 2013 Notice is final and binding on the Applicant.  The Board also had regard to the Director’s 2018 Notice refusing her claim under the remaining three applicable grounds.  It took into account the fact that when the 2018 Notice was served on the Applicant, she was legally represented but decided not appeal until she was held under immigration detention.  Having evaluated all the circumstances, the Board concluded that it is fair and just to refuse the late filing.

16.  Upon further finding that there were no other matters known to the Board or revealed by the factual basis of the Applicant’s claim which might amount to special circumstances and which might make it unjust not to allow the late filing, the Board issued the Decision refusing the late filing.

The legal principles applicable to judicial review

17.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  

Grounds for judicial review

18.  After having been explained the above legal principle, the Applicant confirmed that she had no complaints about procedural unfairness and irrationality and left it to the Court to look for errors of law on her behalf.  However, she had advanced the following six grounds of application in her Form 86:

(1)  The Decision was not reasonable and unfair.

(2)  The Director failed to give proper weight to the presence of state acquiescence.  She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Board acted unfairly by placing too much weight on COI without having regard to her personal background and experience.

(4)  The Director failed to attain the high standard of fairness as required by the Wednesbury test in failing to take her arguments about corruption and incompetency of the administration in her country into account.

(5)  The Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond.

(6)  The Decision is irrational because on the evidence the Board should have allowed the appeal.

Discussion and conclusion

19.  It is manifestly obvious that these grounds are directed at the Director’s decision in the 2018 Notice and not at the Board’s Decision refusing the Applicant’s late filing.  As such, they are irrelevant as challenges to the propriety of the Board’s Decision.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. 

20.  The Board’s Decision was made on the basis of the primary facts which are not in dispute or are incontrovertible, such as service of the 2018 Notice on the Applicant via the DLS, the correspondence between the Applicant and the secretariat, the date of filing of the NOA etc.  The Applicant could have no valid complaint about such finding of fact by the Board.  It was on the basis of these primary facts that the Board made its secondary finding of fact, such as that the Applicant’s breach of the rules are serious and unexplained, that it is fair and just to refuse the late filing and that are no special circumstances which would make it unjust not to allow the late filing.  These are finding of fact solely within the realm of the Board which the Court may not intervene save for errors of law, procedural unfairness or irrationality in the Decision.  The ultimate decision was reached by applying the law to these facts.  That is a mixed finding of facts.  Insofar as it is a finding of fact, it is also within the realm of the Board to make which this Court may not intervene.  Insofar as it is a finding of law, it is absolutely correct.  The Board had regard to the relevant statutory provisions, the Applicant’s explanation for the late filing and all the circumstances.  It correctly adopted the approach in Begum and reached the conclusion that it is fair and just to refuse the late filing.  It was unable to find any special circumstances which might make it unjust not to allow the late filing.  It was for all these reasons that the Board refused the late filing.

21.  The Court had rigorously examined the Decision with anxious scrutiny.  It is satisfied that the Board had correctly set out the law and the legal principles relating to late filing.  The only matter that slightly troubled this Court is that it is not entirely clear whether the Board had considered merits in the intended appeal against the 2018 Notice before finding there were no special circumstances known to the Board which would make it unjust to refuse the late filing.  The Court had an impression that until the Court of Appeal decision in Re Madbar Abdul Salam[6] published in June 2019 the adjudicators were divided as to whether merits in the intended appeal is one of the factors to be considered in deciding whether there were special circumstances.  In that case, the Court of Appeal put it beyond doubt that the three-stage test in Begum includes a consideration of the merits of the intended appeal as part of the special circumstances whether it would be unjust not to allow the late application. 

22.  There was no mention in the Decision about Re Madbar Abdul Salam or merits of the intended appeal.  However, the Board had mentioned finality of the Applicant’s Torture Claim and her decision not to appeal the 2018 Notice while she was still legally represented.  These are strong indicators that the Board had considered merits of the intended appeal. The finding under the 2013 Notice that the injuries or ill-treatment suffered by the Applicant were not serious and that the risk of harm in the future is low which is final and binding on the Applicant must necessarily mean her BOR 3 Risk, BOR 2 Risk and Persecution Risk claims have no prospect of success.  The further finding under the 2018 Notice that the Applicant’s risk of ill-treatment arose out of a personal dispute between her and Uncle Gabriel which does not fall within the protection of Persecution Risk ground and that BOR 2 Risk are not engaged are plainly obvious and unchallengeable.  These are mixed finding of fact and of the law.  Insofar as they are finding of fact, they are based on the Applicant’s own evidence, ie Uncle Gabriel was a farmer and the dispute was about repayment of the Applicant’s parent’s funeral expenses.  The Applicant could have no complaint against such finding of fact.   Insofar as they are finding of law, they are absolutely correct.  On any objective view, the Board could come to no other conclusion other than that it would not be unjust not to allow the late application to appeal which has no prospect of success to proceed.  On balance, this Court is satisfied that merits of the intended appeal had been considered by the Board.

23.  The Court is satisfied that the Board had correctly directed itself on the law and key legal principles applicable to the late filing of NOA.  The Decision is essentially one of finding of fact which is solely within the realm of the Board to make, which the Court on a judicial review will not intervene save for error of law, procedural unfairness and irrationality.  The Court could detect no errors of law in the Decision.  The Board observed a very high standard of fairness.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault.  The Applicant has no arguable grounds for judicial review.  There is no realistic prospect of success in the proposed judicial review. 

24.  Accordingly, 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