ANDRIANI WIBI ASTUTIK v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 756/2018

[2020] HKCFI 2118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 756 of 2018

     Application for Leave to Apply for Judicial Review

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

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 18 September 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of Indonesia who last arrived in Hong Kong on 9 December 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 December 2015 or within 14 days of its early termination.  On 25 March 2014 her employment contract was prematurely terminated when she was arrested by police for the offence of theft, and she then raised a non-refoulement claim with the Immigration Department on the basis that if she returned to Indonesia she would be harmed or killed by her creditor for failing to repay her loan.  She was subsequently convicted as charged and was sentenced to prison for 3 ½ years, and upon her discharge she was then released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Karangdoro, Tegalsari Sub-district, Banyuwangi Regency, East Java Province, Indonesia.  After leaving school she worked in various odd jobs, and in 2011 she started a restaurant business in Surabaya by borrowing a loan from a local gangster repayable by two instalments including interests within one year.

3.  Her business however was not successful and she was having difficulty repaying her loan despite threats and warnings from her creditor, and one day in December 2011 she was abducted by her creditor and his men during which she was beaten and raped for several days before she was released with a warning to repay her loan within 6 months.

4.  Fearing for her life the Applicant in early 2012 fled to Samarinda, and later to Taiwan to work as a domestic helper until August 2013 when she came to Hong Kong to work as a foreign domestic helper, but after she was arrested by police in March 2014 for theft and was subsequently sentenced to prison, and when she heard that her creditor was still looking for her in Indonesia, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 9 September 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.  By a Notice of Decision dated 2 November 2016 the Director of Immigration (“the 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”).

6.  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 her creditor upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from him, that it was in any event a private monetary dispute between them 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 show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her creditor to locate her.

7.  On 15 November 2016 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but before her appeal could be dealt with by the Board, she on 14 September 2017 through the Director informed the Board that she wanted to withdraw her appeal as she stated in her letter dated 13 September 2017 as follows:

“ I want to go back Indonesia to Bali, I am safe to go home and I will buy my own air ticket as soon as possible. I want to cancel to all my non-refoulement claims in Hong Kong and I don’t need to see my non-refoulement case officer. I have no other request.”

8.  On 14 September 2017 the Director also informed the Applicant’s legal representative from DLS of her application and enclosing a copy of her said letter.

9.  By a letter dated 18 September 2017 the Board informed the Applicant that her application to withdraw her appeal was accepted after it was satisfied that she made her application freely with full understanding of the consequences of the withdrawal, and accordingly dismissed her appeal/petition and also confirmed the Director’s decision.      

10.  On 2 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she explained that after the Board withdrew her appeal on 18 September 2017 at her request, she was informed by her family in early March 2018 that her problem had not been solved as her creditor had continued to threaten to kill her over her unpaid debt, and hence she wants to apply to judicial review the Board’s decision to withdraw her appeal.

11.  By then she was however out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review 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.

12.  As the last day of the three-month period for her to file her Form 86 fell on 18 December 2017, the Applicant was therefore 4 ½ 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.

13.  In the Applicant’s case, a delay of 4 ½ months must be considered as very substantial and excessive, for which she explained in her supporting affirmation that after she had withdrawn her appeal and was waiting for repatriation to Indonesia, she was informed by her family in early March 2018 that her problem had not been solved as her creditor was still looking to harm her over her loan, and in her written submissions dated 21 May 2020, she further elaborated:

“ Delay in bringing this application

2.     The reason for my delay in bringing this application is explained in my affirmation dated 2 May 2018 [T2/2-4].  Basically, after I voluntarily withdrew my appeal to the Appeal Board on 14 September 2017, the Appeal Board dismissed my appeal on 18 September 2017.  However, in early-March 2018, while awaiting to be repatriated to my home country, I received further threats that my life would be in danger in I returned to Indonesia.  I therefore took out this judicial review application.”     

14.  This thus brings me to the merits of her intended application, for which she in her submissions put forward the following grounds:

“ Grounds for judicial review

3.     Due to my unfortunate circumstances, the Appeal Board did not consider the merits of my appeal.  I feel that this is unfair and that my case should be reconsidered by the Appeal Board.”

15.  The issue before me is however not whether it is unfair that the Applicant’s appeal had not been considered by the Board, but rather having acceded to her application to withdraw her appeal, whether the appeal procedure came to an end and that the Board became functus officio.

16.  This issue was in fact raised in the case of HT (Hussain Tasawar) v Betty Kwan [2017] 2 HKLRD 567, in which the applicant, having lodged his appeal to the Board against the Director’s decision in rejecting his non-refoulement claim, one month later requested the Board to “cancel” his appeal, to which the Board informed him that it had treated his appeal as one that had been disposed of and finally determined and vacated the scheduled oral hearing, but later the applicant requested to re-open his appeal, and when the Board refused upon finding that he had acted with the knowledge and intention to bring his appeal to an end when he applied to “cancel” his appeal, the applicant then sought leave to judicial review the Board’s decision.       

17.  In his judgment dated 17 March 2017, Deputy High Court Judge Yee held that the Board had no jurisdiction to re-open a validly withdrawn appeal where the applicant had acted with the knowledge and intention to bring his appeal to an end when he applied for his appeal to be “cancelled”.

18.  This judgment was approved by the Court of Appeal (Lam VP and Barma JA) in Re Ali Usman [2018] HKCA 955 which held that the functus principle applies to the Board in relation to validly withdrawn claims, and in Re Das Purnima Rani [2019] HKCA 669 the Court of Appeal (Yuen JA and Lisa Wong J) elaborated further as follows:

“ 41. Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. As analysed by DHCJ Yee at [36]-[40] and [47]-[48], s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals.

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO (2)[12] if he can fulfil the requirements in sub-ss (a) and (b) thereunder.

43.     On the other hand, where a withdrawal or abandonment is invalid, it would logically be a nullity and, as such, could and would have no effect on the appeal which remains extant so that the Board can and should resume processing the same upon the claimant’s application.  Quite apart from the nullifying effect of an invalid withdrawal/abandonment, this conclusion also appears to us to follow from applying the high standard of fairness required in handling non-refoulement claims.”  

19.  Applying these principles, and having read the Applicant’s letter of 13 September 2017 of her application to “cancel” her appeal because she wanted to go home and that it was safe for her to do so, the Board was in my judgment entitled to find that she made her application freely, and that more significantly she understood, or would have understood, the consequences of the withdrawal, which was what the Board had stated clearly in the concluding paragraph of its letter of 18 September 2017 as follows:

“ Please note that your Appeal/Petition have now been disposed of and finally determined by the Board. No further action will be taken by the Board in respect of your Appeal/Petition.”

20.  Had she not properly understood such consequences of her withdrawal, she should and would have raised them with the Board upon receipt of its letter, but she never did, and that her written submissions now before me in which she confirmed that she “voluntarily withdrew” her appeal to the Board show that she did make a deliberate and informed decision in September 2017 to withdraw her appeal.

21.  Furthermore, the Applicant never disclosed in her application for withdrawal of her appeal what information that she had when she stated that it was safe for her to return home in Indonesia, nor has she since done so, and hence her subsequent change of mind could not, in my view, invalidate her earlier withdrawal of her appeal before the Board.

22.  It is also noted that in her letter of 13 September 2017 to withdraw her appeal, the Applicant indicated that she wanted to go back to Indonesia to Bali which is clearly not her home district in Indonesia, nor more significantly is it where her claimed risk of harm was as found by the Director, and given his finding that such risk would be negated by reasonable internal relocation within Indonesia being available to the Applicant, which thus further support the Board’s view that she made her application to withdraw her appeal freely with full understanding of the consequences of the withdrawal.     

23.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I refuse to extend time for her leave application which is accordingly dismissed.

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