YULIANI v. DIRECTOR OF IMMIGRATION

HCAL 978/2021

[2021] HKCFI 2466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 978 of 2021

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  A person who claims non-refoulement protection in Hong Kong on the ground of a torture claim must comply with every requirement, procedure and condition including any time limit prescribed by Part VIIC of the Immigration Ordinance, Cap 115 (“Ordinance”), including completing a Torture Claim Form (“TCF”) or a Non-Refoulement Claim Form (“NCF”) on written request by an immigration officer, and in which to state the grounds of the claim and the facts supporting such claim as well as such other information as is required by the form, and to return the form so completed to an immigration officer within 28 days or such further period that an immigration officer may allow as stipulated under Section 37Y of the Ordinance.

2.  A claimant who fails to return a completed TCF or NCF will have the torture claim or non-refoulement claim treated as withdrawn, although it may be re-opened upon the claimant complying certain requirements as provided by Section 37ZG at that time as follows:

“(1) A torture claim must be treated as withdrawn if the person who made the claim fails to return a completed torture claim form as required under section 37Y(2).

(2) An immigration officer must give the person who made the claim a written notice stating that –

(a) the torture claim is treated as withdrawn under subsection (1); and

(b) the person may apply to re-open the claim under subsection (3).

(3) A torture claim treated as withdrawn under subsection (1) may be re-opened if the person who made the claim provides sufficient evidence in writing to satisfy an immigration officer that due to circumstances beyond the person’s control, the person had not been able to return a completed torture claim form as required under section 37Y(2).

(4) If an immigration officer decides to re-open a person’s torture claim under subsection (3), the immigration officer must, by written notice, inform the person –

(a) of the decision; and

(b) that the person is required to return a completed torture claim form in respect of the claim to an immigration officer at an address specified in the form within 14 days after the notice is given.

(5) If an immigration officer decides not to re-open the person’s torture claim, the immigration officer must, by written notice, inform the person of –

(a) the decision;

(b) the reasons for the decision; and

(c) the person’s right under section 37ZR to appeal against the decision …”

3.  Section 37ZA of the Ordinance also stipulates that it is the duty of a claimant to substantiate a torture claim, and to that end the claimant must provide to the Director of Immigration (“Director”) all information relevant to the claim and make prompt and full disclosure of all material facts in support of the claim including any document supporting those facts, and must also comply with every requirement, procedure and condition including any time limit prescribed by the Ordinance or required or specified by an immigration officer.

4.  In the present case, the Applicant is a 41-year-old national of Indonesia who arrived in Hong Kong on 16 July 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 24 April 2015 or within 14 days of its early termination, but when her employment was prematurely terminated on 17 July 2013, she did not depart and instead overstayed in Hong Kong until more than 3 years later on 19 August 2016 when she was arrested by police.

5.  After she was referred to the Immigration Department for investigation, the Applicant raised a non-refoulement claim by way of a written representation on 29 August 2016 that her life would be in danger if refouled to Indonesia, for which the screening process under the Unified Screening Mechanism (“USM”) commenced on 16 June 2017 when she was given a briefing session by an immigration officer, during which she was given a blank NCF to be completed by her with legal representation from Duty Lawyer Service (“DLS”).

6.  Upon the Applicant accepting legal representation from DLS, the Director by a written request dated 7 July 2017 required the Applicant to return her completed NCF within 28 days on or before 4 August 2017, and for which a written reminder was also sent to her on 28 July 2017 with a warning that failing which her claim would be treated as withdrawn. The Applicant was subsequently released on recognizance pending the determination of her claim.

7.  On 4 August 2017 the DLS in writing informed the Immigration Department of no further instructions to act for the Applicant.

8.  By a letter dated 8 August 2017 the Director informed the Applicant that due to her failure to return her completed NCF within the required period, her non-refoulement claim was treated as withdrawn, but if she wished to apply to re-open her claim, she must provide sufficient evidence in writing to satisfy an immigration officer that she had not been able to return her completed NCF due to circumstances beyond her control.     

9.  No response had been received from the Applicant, who then on 4 August 2017 also failed to report on her recognizance and had thereafter absconded for more than 3 years until her arrest by the police again on 13 April 2021.

10.  On 4 May 2021 the Applicant in writing requested for re-opening of her non-refoulement claim as her problem in her home country had not been resolved and that her life would still be in danger in Indonesia.

11.  By a letter dated 20 May 2021 the Director required the Applicant to provide further information and evidence in writing on or before 3 June 2021 to satisfy an immigration officer that she had not been able to return her completed NCF due to circumstances beyond her control.

12.  By a letter dated 25 May 2021 and which was received by the Immigration Department only on 7 June 2021, the Applicant stated that she was scared that she would be sent back to Indonesia and that she did not at that time have the money to pay for the transportation to DLS or to the Immigration Department.        

13.  By a Notice of Decision dated 11 June 2021 the Director refused to allow the Applicant to re-open her non-refoulement claim upon finding that she had failed to provide sufficient evidence in writing to satisfy an immigration officer that she had not been able to return her completed NCF due to circumstances beyond her control, as the Director explained at paragraph 12 of his decision:

“You have been overstaying in Hong Kong for more than 3 years and then arrested by the police. Subsequently you lodged a non-refoulement claim. The screening process of your claim was commenced on 16 July 2017 and you accepted the publicly-funded legal assistance provide by the DLS. You have failed to report to the recognizance office and absconded for more than 3 years until you were rearrested by the Hong Kong police. It cause doubts on you true intention to pursue your claim. You have been staying in Hong Kong for at least 7 years totally. In a prosperous city which information flow is so free and uninhibited like Hong Kong, it is hard for one to comprehend why it would be impossible for you to get in touch with the DLS or RAS if you had the real intention to do so. You claimed that you did not have the money for transportation. It is hard to understand that why you have been able to sustain a living in Hong Kong for such a long period of time yet you did not have the money for transportation in order to contact DLS or RAS. It is questionable as to why you failed to contact the DLS or RAS, or even to make a phone call to inform them about your situation, or to enquire/follow up your non-refoulement claim if you wished to do so.”

14.  The Applicant did not lodge any appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but instead on 12 July 2021 filed a Form 86 for leave to apply for judicial review of the Director’s decision, and no ground for seeking relief was given in her Form or her supporting affirmation of the same date. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or in the decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

15.  More importantly, as advised by the Director in the decision, if the Applicant had intended to challenge the decision of the immigration officer not to allow her to re-open her non-refoulement claim, she should have first lodged an appeal to the Board pursuant to Section 37ZR(a) of the Ordinance, and as it was held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549 where it undertook an extensive review of the administrative structure for the processing of non-refoulement claims, first by the Immigration Department, and followed by the Board in the two-tier process, and concluded that as the Board’s decision supersedes the immigration officer’s decision and represents the final decision on the claim at the end of its processing, the decision of the immigration officer is not a decision, within the administrative structure, which is susceptible to judicial review before an appeal to the Board has been pursued.  

16.  In the premises and for the reasons given, and as the Applicant has not lodged any appeal to the Board, I do not find any legal basis in her intended application for judicial review of the Director’s decision, and accordingly I refuse her leave application.

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