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HCAL295/2018
[2018] HKCFI 2415
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 295 of 2018
BETWEEN
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Rini Artini |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
(1) Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 8 September 2017 be refused; and
(2) Leave to apply for judicial review be dismissed.
It is further directed that:
(1) If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal;
(2) When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal;
(3) The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper;
(4) If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions; and
(5) Liberty to apply.
Observations for the Applicant
Background
1. The Applicant is a national of Indonesia. She is now aged 33 (DOB: 12 September 1985).
2. The Applicant claimed she would be harmed or killed by a loan shark because her family were unable to repay the loan owed to the loan shark.
3. The Applicant said her grandfather had a tumour in early 2011. Her parents borrowed money from a loan shark called Rusman for the grandfather’s medical expenses.
4. In March 2011, Rusman came with two bodyguards to demand repayment. The Applicant’s parents had no money to pay. Rusman said the Applicant had to marry him. He was an abusive man and already had a few wives. The Applicant’s parents refused Rusman’s suggestion. Rusman then told them to work for him. The Applicant’s parents agreed.
5. The Applicant's parents were worried about the Applicant. The mother sent the Applicant away to stay with an old schoolmate for about a month.
6. The Applicant then returned home. Rusman came. He said her parents did not earn enough for repayment. He threatened the Applicant that he would kill them if they did not repay the loan. The Applicant told Rusman she would go to Hong Kong to work to pay him.
7. The Applicant went to an employment agency in Jakarta for vocational training. A few months later, she came to Hong Kong to work as domestic helper. However, her employment contract was terminated after three months. The Applicant then worked for another employer for one odd years. She need to pay the employment agency so she had only remitted a little money to her parents in Indonesia.
8. The Applicant was dismissed by her second employer on 17 September 2013. She was afraid of returning to Indonesia so she overstayed here.
9. The Applicant was arrested on 16 October 2013. She subsequently sought non-refoulement protection.
10. When the Applicant last spoke to her parents on the phone, she learnt they had already moved to live in another place because of the problem with Rusman. The Applicant later lost contact with her parents. She did not know if Rusman was still looking for her.
11. The Applicant said internal relocation was not viable as she had no one to turn to in Indonesia.
12. The Applicant believed the Indonesia authorities would not assist her because her family’s problem with Rusman was only a private dispute.
13. In the ensuing two-tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
14. On 26 February 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| Mar 2012 |
The Applicant came to Hong Kong to work as domestic helper. |
| 2012-8-28 |
The Applicant last entered Hong Kong. Her employment contract was terminated on 17 September 2013. |
| 2013-10-2 |
The Applicant began overstaying here. |
| 2013-10-16 |
The Applicant was arrested by the police. |
| 2014-3-17 |
The Applicant lodged a non-refoulement claim. |
| 2015-7-30 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and BOR3 risk. [“the Director's decision’] |
| 2016-10-26 |
The Applicant appeared before the Board for appeal. |
| 2017-5-23 |
The Director invited the Applicant to submit additional facts. |
| 2017-6-5 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-8-1 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision’] |
| 2017-9-8 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board's decision’] |
| 2018-2-26 |
The Applicant applied for leave for judicial review. |
Respondents
16. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
19. In the Director’s decision dated 30 July 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event.
20. In the Director’s further decision dated 1 August 2017, the Director also refused the Applicant’s claim with respect to BOR2 risk.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 26 October 2016.
22. The Adjudicator made no specific finding on the Applicant’s credibility. However, even on the Applicant’s own account of events the Adjudicator found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. Rusman only made verbal threats against the Applicant. The Adjudicator further noted the alleged dispute was only a private matter and no state actor was involved. The Adjudicator found there were no substantial grounds for believing the Applicant would face any real BOR2 risk or BOR 3 risk. There was also no persecution risk or torture risk.[6]
23. The Adjudicator considered that even if there was any risk faced by the Applicant, she could relocate herself in Indonesia because her alleged risk was only confined to the area where she lived.[7]
24. On 8 September 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
25. In her affirmation, the Applicant complained the Director and the Adjudicator failed to conduct sufficient enquiry; failed to conduct critical analysis of relevant country-of-origin information ("COI"); failed to provide adequate reasons to explain why certain COI was preferred; cherry-picked information; failed to consider properly the issue of state protection; failure to consider the psychological impact of her complained threats; took into account irrelevant considerations; rendered irrational decisions.
Court hearing
26. The Applicant requested a hearing. The hearing took place on 3 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
27. The Applicant applied for judicial review late. She admitted she did receive the Board’s decision (dated 8 September 2017) but she did not know she had to file judicial review application within three months. The Applicant said she applied for legal aid on 3 October 2017 and had been waiting for the result. She learnt on 12 February 2018 that the Director of Legal Aid had refused her application. She then applied for leave for judicial review on 26 February 2018. A friend helped her to prepare Form 86 and the affirmation.
28. The Applicant confirmed all the ground of judicial review were in the documents. She could not elaborate those complaints or give particulars.
29. The Applicant also confirmed she had submitted all to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [9]
Late application for leave for judicial review
32. Order 53 Rule 3(1) of the Rules of the High Court reads: –
(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.
33. Order 53 Rule 4(1) and (2) of the Rules of the High Court read: –
(1) 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. (L.N. 356 of 1988)
(2) Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.
34. It is clear from these provisions that no application can be made after the three-month period unless the Court considers there is a good reason for extending time. The Applicant must provide good reasons for the Court to approve extension of time. It is a pre-requisite in late application for leave for judicial review.[10] If the court is not satisfied there is a good reason for extending time, then no application for judicial review can be made in accordance with Rule 4(1). In that event, the Court should not proceed to consider if leave should be granted or refused on other grounds.[11]
35. In the present case, the Board’s decision was issued on 8 September 2017. The Applicant got it but only applied for leave for judicial review 5 ½ months later on 26 February 2018. Excluding the 3-month grace period for filing, she was late by 2 ½ month.
36. The Applicant said she did not know there was a time limit of three months for seeking leave for judicial review. She applied for legal aid in early October 2017 and waited for the result, which came out only in February 2018. Then she took the advice of a friend to file the current application.
37. The Applicant's ignorance of the 3-month time limit was not a good reason. Her waiting for the legal aid result was no justification for late filing either. The Applicant could have proceeded both legal aid application and application for leave for judicial review at the same time.
38. Even though the Applicant took out the current application soon after she was advised by a friend, she was eventually late in her application by 2 ½ months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent might not be much but discipline should be maintained in the area of public law. The Applicant's application for leave for judicial review involved no issue of general importance and her argument had no merits at all (see below).
39. The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 18 above, I only need to be concerned with the Board’s decision.
40. The Adjudicator’s report showed he made detailed inquiry of the Applicant’s claim. He was appreciative of the Applicant's alleged fear. The Adjudicator referred to sufficient COI and had proper basis to find that even if the Applicant faced risk, internal relocation was viable in her case.
41. The Adjudicator had considered the relevant facts of the Applicant’s claim. There was no evidence that the Adjudicator cherry-picked information or took into account irrelevant consideration.
42. The Adjudicator did not specifically say whether reasonable protection was available to the Applicant if she really needed it. Nevertheless, he rightly pointed out the Applicant had never sought such protection.[12]
43. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
44. The current application for leave for judicial review is unjustifiably late. There are no circumstances that oblige the court to consider such late application. I refuse to grant the Applicant extension of time. Her late application for leave for judicial review is thereby dismissed.
Dated 21st day of November 2018
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(Alan Ngan)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 21/11/2018
Rini Artini Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 2036/15/8/57/I155
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 992/15 & RBCZ 9001936/17
(formerly RBCZ 1533/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, para 45.
[7] Ibid., paras 46-59.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 110/2016 Kwok Cheuk Kin, para. 17.
[11] Ibid., para 19.
[12] The Board's decision, para 45(e).
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