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

HCAL 1972/2019

[2024] HKCFI 2519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1972 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 30 April 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is late. Her application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 30 July 2018. Her application was filed on 12 July 2019, which is more than 11 months’ late. This issue will be dealt with below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 46, is a national of Indonesia. She came to Hong Kong to work as a domestic helper on 27 March 2008. Her contract prematurely terminated, but she did not depart and hence overstayed since 19 May 2008. She had committed criminal offences and was imprisoned. During her imprisonment, she raised her claim on torture risk, which the Director rejected on 22 January 2014. By way of written signification dated 6 June 2013, she lodged non-refoulement claim on other applicable risks mentioned below on the basis that, upon refoulement, she will be harmed or killed by a creditor because she failed to repay a loan, and also she refused to be his mistress and join the campaign for the Golkar Party. She further said that she would not be accepted by her family members and would be discriminated by her neighbours because she was convicted of a drug trafficking offence in Hong Kong.

The Director’s Decision

5.  As the Director had rejected her claim on torture risk, the Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s Notice of Decision dated 12 April 2017 (“the Director’s Decision”), the Director dismissed the applicant’s claim. The Director found that: (i) the low intensity and frequency of past ill-treatment inflicted on her by her creditor is indicative of low future risk of harm upon her return to Indonesia [18]-[21]; (ii) state protection will be available to her upon her return [22]-[26]; and (iii) internal relocation is viable [27].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. However, she was late in filing the notice of appeal. According to the Board, time expired on 2 May 2017, but it was not until 29 May 2017 that the Board received her notice of appeal.

8.  In her reason for her late filing of the notice of appeal, the applicant said, under section 5 of the form, that she had no money for transportation at that time. The Board did not accept her explanation, taking the view that all that was required was for her to send in her completed Notice of Appeal/Petition by post within the appropriate time limit. By Decision dated 30 April 2018 (“the Board’s Decision”), the Board refused to extend time for her to file her notice of appeal, in effect, dismissing her appeal.

Application for leave to apply for judicial review of the Board’s Decision

9.  The applicant has filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

10.  In the affirmation in support of her application, the applicant said that the Board had disregarded her dangerous situation. She did not raised any ground to challenge the Board’s Decision.

DISCUSSION

11.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

12.  The question before this Court is whether the Board had committed any error within the context of administrative law in refusing to extend time for the applicant to file her notice of appeal.

13.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, Hon Yuen JA, Lisa Wong J, 2 April 2019, in a case where the applicant was late in filing his notice of appeal to the Board and he had given no reason for such delay, the Court of Appeal held,

“18. …where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

20. … …it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.”

14.  It is clear that the Board had not considered the merits of the applicant’s case before it made its decisions not to extend time for her to file her notice of appeal. As such, it is an error in law. The applicant therefore has a realistic prospect of success in her intended application for judicial review of the Board’s Decision.

DISPOSITION

15.  I extend time for the applicant to file Form 86 for this application. I also grant leave to the applicant to apply for judicial review of the Board’s Decision. The applicant shall, within 14 days from the service of this Order, issue the originating summons for her application in accordance with Order 53 rule 5 of the Rules of the High Court.