MUSAFAQOH v. YU CHEUK-MAN, ESQ.

HCAL126/2018

[2018] HKCFI 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 126 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of Indonesia. 

2.  The Applicant came to Hong Kong to work as domestic helper between 17 March 2011 and 3 November 2012. She had overstayed since 18 November 2012. She sought non-refoulement protection in August 2013. She claimed she would be harmed or killed by her family members in Indonesia.

3.  The Applicant first raised her claim of harm in a letter to the Director dated 19 August 2013. She said it was due to a land dispute. Then in another letter dated 17 March 2014, she said her risk was also due to her change of religion and her sexuality as a lesbian.

4.  The Applicant, however, never sent a completed non-refoulement claim form (“NCF”) to the Director within the prescribed period of 28 days from the date the Director so requested her by a notice dated 26 November 2014. The deadline was extended to 14 January 2015. The Applicant was represented by the Duty Lawyer Service (“DLS”) from 27 November 2014 until 13 January 2015, when DLS informed the Director that they had received no instruction from the Applicant.

5.  There was no completed NCF from the Applicant. In such circumstance, the Director on 15 January 2015 considered the Applicant had withdrawn her claim.

6.  The Director sent to the Applicant's reported address a withdrawal notification dated 16 January 2015. It was accompanied by an Indonesian translation. In the notification, the Applicant was informed that if she wished to apply to reopen the claim, she should provide sufficient evidence in writing to satisfy the Director that she had not been able to return the completed NCF as required due to circumstances beyond her control.

7.  On 26 January 2015, the Applicant reported to the Ma Tau Kok Report (Recognizance) Office. A copy of the withdrawal notification was served on her in person then.

8.  Seven months later, the Applicant through DLS requested the Director to reopen her claim. The Applicant alleged she had lost her mobile phone. She could only call DLS a few times from paid public phones. However, she mistakenly called the wrong number.

9.  On 17 September 2015, the Director requested the Applicant to provide information to support her application to reopen the claim.

10.  In a letter dated 22 September 2015, the Applicant told the Director that she had provided a wrong address to the Director. She had not received the blank NCF or the withdrawal notification dated 16 January 2015.

11.  In another letter dated 6 October 2015 through DLS, the Applicant said that after she had lost her mobile phone she could only try to call DLS by paid public phones because her means were meagre. She had no money to pay for mobile phone service. She also said it would be costly to travel frequently to the DLS office. [DLS records showed the Applicant went to the DLS office on 29 January 2015 to ask for assistance. However, DLS could not contact the Applicant via her mobile phone for follow-up. The Applicant only went to the DLS office again on 1 September 2015. She explained that she had no money to pay for mobile phone service.]

12.  On 19 October 2015, the Director refused to reopen the Applicant's claim.

13.  The Applicant appealed to the Board on 30 October 2015. The Adjudicator interviewed her on 24 October 2017 and dismissed her appeal on 29 December 2017.

14.  On 16 January 2018, the Applicant applied for leave for judicial review.

Chronology of events

15.     Things happened in this order: –

2011-3-17	The Applicant came to Hong Kong to work as domestic helper till 3 November 2012. She had overstayed since 18 November 2012.
August 2013	The Applicant sought non-refoulement protection. She first claimed she would be harmed or killed by her family members in Indonesia due to a land dispute. She later added that she was also at risk due to her change of religion and her sexuality as a lesbian.
2014-11-26	The Director requested the Applicant to send a completed NCF within the prescribed period of 28 days. [The deadline was later extended to 14 January 2015.]
2014-11-27	Duty Lawyer Service (“DLS”) started to represent the Applicant.
2015-1-13	DLS ceased acting for the Applicant due to lack of instructions.
2015-1-14	The Applicant failed to send a completed NCF to the Director by the extended deadline or thereafter.
2015-1-16	The Director sent a notice (with Indonesian translation) to the Applicant to inform her that her claim was deemed to have been withdrawn since she failed to return a completed NCF in time.
2015-1-26	The same notice was served on the Applicant in person when she reported to the Ma Tau Kok Report (Recognizance) Office.
2015-1-29	The Applicant went to DLS to seek assistance.
2015-9-1	The Applicant went to DLS again. She explained she had no money to pay for mobile service to make contacts.
2015-9-2	DLS wrote to the Director on behalf of the Applicant to request re-opening of the Applicant's non-refoulement claim. The Applicant explained she had lost her mobile phone. She called DLS by paid public phones a few times but mistakenly called the wrong number.
2015-9-17	The Director requested the Applicant to provide information to support her request to re-open the claim.
2015-10-6	DLS wrote to the Director stating the Applicant claimed that due to meagre means and lack of social support she could not contact DLS apart from trying to make a few calls using paid public phone.
2015-10-19	The Director refused to re-open the Applicant’s claim. [“the Director’s decision”]
2015-10-30	The Applicant appealed to the Board.
2017-10-24	The Applicant appeared before the Board in person for appeal.
2017-12-29	The Board dismissed the Applicant’s appeal. [“the Board’s decision”]
2018-1-26	The Applicant applied for leave for judicial review.

Respondent/Interested party

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 complaint on a rehearing basis. 

17.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.

18.  The Adjudicator did not act in his personal capacity. He represented the Board. The Applicant should sue the Board in lieu of the Adjudicator. However, the Applicant was absent from the hearing. The court could not make any change for her. Therefore, the Adjudicator remains as the putative respondent; the Director is the putative interested party.

Director of Immigration (the Director)

19.  In the Director’s decision dated 19 October 2015, the immigration officer canvassed the events that had happened. He found the Applicant had been handed a copy of the withdrawal notification when she reported to the Ma Tau Kok Report (Recognizance) Office on 26 January 2015. The Applicant had not provided sufficient evidence to justify that she had not been able to return a completed NCF due to circumstances beyond her control. The officer refused to allow the Applicant to re-open her  claim.[1]

TCAB/NCPO (the Board)

20.  The Adjudicator interviewed the Applicant. He found the Applicant had received a copy of the withdrawal notification when she reported to the Ma Tau Kok Report (Recognizance) Office on 26 January 2015. She went to the DLS office on 29 January 2015 but then failed to contact DLS for seven months until she went to the DLS again on 1 September 2015.

21.  The Adjudicator was not satisfied the Applicant had established that her failure to return a completed NCF was due to circumstances beyond her control. The Adjudicator did not find there were special circumstances to allow the Applicant to re-open her claim. Therefore, he dismissed the Applicant's appeal.

Grounds of judicial review

22.  In her affirmation, the Applicant complained the Adjudicator failed to carry out sufficient research and inquiry of the country-of-origin information (“COI”); failed to properly consider relevant COI; took into account outdated COI or COI of little or no relevance; took into account information that was incorrect or inaccurate; ignored facts and inferences favourable to her; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant and mass violations of human rights; failed to call for psychological and psychiatric reports; failed to properly consider the issue of state protection; applied the incorrect standard of proof; rendered unreasonable decisions. The Applicant also complained about unfairness and insufficient legal representation.

Court hearing

23.  In Form 86, the Applicant requested a hearing.  The hearing was scheduled for 13 June 2018. The Applicant was absent. The Indonesia interpreter called the Applicant's mobile number on record three times. No one answered the calls.

24.  Up to today, the court has not heard from the Applicant as to why she was absent from the hearing. I therefore proceed to deal with her application on consideration of documents only.

Discussion

25.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

26.  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’.[2]

27.  The Applicant had stated a number of grounds for her application for leave for judicial review. The grounds were simply not to the point. The Director and the Adjudicator had not considered the Applicant's non-refoulement claim with respect to its merits. The Applicant failed to return a completed NCF to the Director within the time allowed by the Director. Her claim was thus deemed as having been withdrawn. When the Applicant later applied to reopen her claim, the Director considered she had not provided sufficient evidence to justify that she had not been able to return a completed NCF as required due to circumstances beyond her control. The Director refused to reopen the Applicant's claim. The Adjudicator endorsed the Director’s decision and dismissed the Applicant's appeal.

Submission of claim form

28.  Section 37Y of the Immigration Ordinance Cap. 115 states:

(1) A claimant must, on written request by an immigration officer –

(a) complete a torture claim form, and the completed form must –

(i) state the grounds of the claim and the facts supporting the claim; and

(ii) include such other information as is required by the form; and

(b) return the torture claim form so completed to an immigration officer at an address specified in the form, together with all documents supporting the claim that are readily available to the claimant when the form is returned.

(2) The claimant must return the completed torture claim form in accordance with subsection (1)(b) –

(a) within the period of 28 days after a written request under subsection (1) is given to the claimant; or

(b) within any further period that an immigration officer allows under subsection (3).

(3) An immigration officer may –

(a) on an application made by a claimant in writing before the expiry of a period for returning a completed torture claim form in respect of the claimant’s torture claim; and

(b) on being satisfied that, by reason of special circumstances, it   would be unjust not to allow a further period for the claimant to return the completed form,

allow a further period that the immigration officer considers appropriate for the claimant to return the completed form.

(4) The torture claim form is to be in a form specified by the Director.

Deemed withdrawal of claim on failure to return completed claim form

29.  Section 37ZG of the Immigration Ordinance Cap. 115 states:

(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).

30.  The Applicant failed to return a completed claim form by the extended deadline of 14 January 2015. The Applicant's claim must then be treated as having been withdrawn according to s.37ZG(1) of Cap. 115. The Director duly issued a written notice of the deemed withdrawal. The Applicant got the notice on 26 January 2015 when she reported to the Director for recognizance.

31.  The Applicant could apply to the Director to reopen he claim. However, she must provide sufficient evidence in writing to satisfy the Director that it was due to circumstances beyond her control that she had not been able to return a completed claim form as required.

32.  The Applicant alleged she had lost her mobile phone. She had no money to buy a new phone or pay for mobile service. She called DLS a few times by paid public phone but mistakenly dialled the wrong number. She also said it would be too expensive for her to go to DLS frequently.

33.  Assuming the Applicant had really lost her mobile phone and she was of meagre means, there was still no reason for her to lose contact with DLS and to fail to return a completed claim form to the Director by the extended deadline of 14 January 2015. Such failure must be deemed as withdrawal of her claim according to s. 37ZG(1) of Cap. 115.

34.  The Applicant may apply to reopen her claim but she must provide sufficient evidence in writing to satisfy the Director that due to circumstances beyond her control she had not been able to return a completed claim form as required. The excuses given by the Applicant were not reasonable and therefore could not constitute circumstances beyond her control that made her unable to return a completed claim form as required. If the Applicant really got the DLS phone number wrong, she could go to the Immigration Department to ask for the right number for contact. Or simpler still, she could go to DLS early to give instruction to DLS to have the claim form completed and sent to the Director in time. Instead, she sat on the matter for much time. She went to DLS once in late January 2015, then failed to contact DLS for 7 months before she contacted DLS again only in September 2015.

35.  The Director deemed the Applicant’s claim as having been withdrawn. He later refused to reopen the Applicant's claim. The Adjudicator’s endorsed the Director's decision. I have reviewed the Director's decision and Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied their decisions were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

36.  The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.

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] The Director's decision, paras 14-20.

[2] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.