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HCAL712/2018
[2019] HKCFI 369
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 712 of 2018
BETWEEN
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Masnah |
Applicant |
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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 18 August 2017 be refused; and
(2) Application for 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 35 (DOB: 21 February 1983).
2. The Applicant claimed she would be harmed or killed by her creditor Denny because she failed to repay the loan owed to him.
3. The Applicant also feared her brothers would harm her because they believed the Applicant had caused their father’s death.
4. Furthermore, the Applicant feared she would be harmed or killed by her husband Alex because she had an affair with a man in Hong Kong.
5. The Applicant said her husband Alex needed money to start his business in Indonesia. He asked the Applicant to borrow money from Denny. Denny was close to the authorities in the local area and had a lot of subordinates. In November 2010, the Applicant signed a loan document to borrow 120,000,000,000 IDR (Indonesian currency) from Denny.
6. The Applicant soon went to Hong Kong to work as domestic helper in January 2011. She remitted money back to Indonesia for Alex to repay Denny.
7. In May/June 2013, the Applicant sensed there was something wrong with Alex. She took leave to go back to Indonesia in August 2013.
8. In Indonesia, the couple argued over money. Alex assaulted the Applicant.
9. Denny came to demand payment from the Applicant. He threatened to kill the Applicant if she could not make the payment. The Applicant was hurt by Denny’s bodyguards.
10. The Applicant did not report the matter to the police. She thought it was Alex’s fault because he failed to make payment to Denny. In any event, the Applicant did not think the Indonesia police would help. She sought help from the neighbourhood association but to no avail.
11. Denny went to the home of the Applicant's father to demand payment. The Applicant’s father was hurt during chaos. Denny also threatened to kill the Applicant’s brothers. A report was made to the police but the police only suggested the Applicant’s brothers to settle the matter with Denny.
12. The Applicant returned to Hong Kong in late August 2013.
13. In December 2013, the Applicant learnt her father had died. The Applicant's brothers attributed their father’ death to the Applicant’s loan problem. They threatened to kill the Applicant if she went back to Indonesia.
14. When the Applicant's employment in Hong Kong was prematurely terminated on 27 January 2014, she dared not return to Indonesia. She overstayed from 11 February 2014.
15. The Applicant surrendered to the Immigration Department 16 months later on 10 June 2015. She raised a non-refoulement claim subsequently. The Applicant said she did not know until then that she could surrender to the Immigration Department.
16. In November 2015, the Applicant met a Pakistan man in Hong Kong. They fell in love. Someone informed Alex in Indonesia. Alex threatened to kill the Applicant if she would go back to Indonesia.
17. The Applicant said the Indonesia authorities could not protect her. The police were corrupt. They would not help if no bribes were offered to them.
18. The Applicant said internal relocation was not viable because Denny and his subordinates could find her anywhere in the country. She also said she had no means for internal relocation.
19. In the ensuing two-tier screening process here, 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].
20. On 24 April 2018, the Applicant applied for leave for judicial review.
Timeline
21. Things happened in this order: –
| Jan 2011 |
The Applicant started working as domestic helper in Hong Kong. |
| 2013-8-25 |
The Applicant last departed Indonesia. Her employment contract here was prematurely terminated on 27 January 2014. She was required to leave no later than 10 February 2014. |
| 2014-2-11 |
The Applicant began overstaying in Hong Kong. |
| 2015-6-10 |
The Applicant surrendered to the Immigration Department. |
| Aug 2015 |
The Applicant lodged a non-refoulement claim. |
| 2017-1-3 |
The Director refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2017-8-9 |
The Applicant appeared before the Board for appeal. |
| 2017-8-18 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-24 |
The Applicant applied for leave for judicial review. |
Respondents
22. 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.
23. 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.
24. 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 decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
25. In his decision dated 3 January 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
26. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 9 August 2017.
27. The Applicant had made several written representations to the Director before she completed the non-refoulement claim form (“NCF”) on 18 August 2016. The Adjudicator noted the Applicant's claim was evolving. There were inconsistent and unsatisfactory features in her various allegations. The Applicant was inconsistent on whether the alleged loan was borrowed from a bank or a loan shark. Also, she first mentioned her risk came from her husband Alex. She only mentioned Denny’s loan in her letter dated 19 May 2016 to the Director. The Adjudicator did not accept the Applicant's explanation that her presentation problem was due to stress, confusion and deficiency in English. The Adjudicator did not accept the Applicant’s claim relating to risk from Denny and her siblings. He also found the Applicant's claim relating to Alex’s threat unreliable.
28. The Adjudicator considered that even if the Applicant faced any risk from Denny, Alex or her siblings, the risk was localized to her home area. The Adjudicator referred to relevant country-of-origin information ("COI"). He was satisfied internal relocation was viable in the Applicant's case.
29. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 18 August 2017, he refused the Applicant’s claim with respect to all the four applicable grounds.
Grounds of judicial review
30. The Applicant complained the Director and the Adjudicator failed to conduct sufficient inquiry; failed to conduct critical analysis of relevant 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; failed to consider the psychological impact of her complained threats; took into account irrelevant considerations; rendered irrational decisions; failed to give reasons for assessment of lack of BOR3 risk.
31. The Applicant filed her application for leave for judicial review late on 24 April 2018, eight months after the Board's decision had come out on 18 August 2017. The Applicant said she did not know she could apply for leave for judicial review and she came to know about that only recently. The Applicant said she applied for legal aid on 2 November 2017. The Director of Legal Aid refused her application on 29 December 2017. She then appealed against the refusal decision. The appeal was heard on 26 April 2018.
Court hearing
32. The hearing took place on 27 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
33. The Applicant said she did not know the outcome of her legal aid appeal.
34. The Applicant said a friend helped her to prepare Form 86 and the affirmation. She confirmed all the grounds of judicial review were in the documents. She had nothing to add to those grounds.
35. The Applicant also confirmed she had told all to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
37. 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’.[6] 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.” [7]
Late application for leave for judicial review
38. 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.
39. 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.
40. 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.[8] 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.[9]
41. In the present case, the Board’s decision was issued on 18 August 2017. The Applicant only applied for leave for judicial review eight months later on 24 April 2018. Excluding the three-month grace period for filing, she was late by five months.
42. The Applicant said she did not know she could apply for leave for judicial review and only knew about that later. She applied for legal aid on 2 November 2017 and the Director of Legal Aid refused her application on 29 December 2017. She then appealed against the refusal decision and the appeal was heard on 26 April 2018.
43. The Applicant's ignorance of the three-month time limit for applying for leave for judicial review was not a good reason. Her waiting for the legal aid result was no justification for late filing either. The Applicant could have proceeded with legal aid application and application for leave for judicial review at the same time.
44. The current application was late by five months. There was no good reason for the delay, which was undue and substantial. The prejudice that would be caused to the putative respondent was not insignificant. Discipline should be maintained in the area of public law. The current application for leave for judicial review involved no issue of general importance and the Applicant's argument had no merits at all (see below).
45. The Applicant complained against the Director and the Adjudicator. As said in paragraph 24 above, the Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I only need to be concerned with the Adjudicator’s decision.
46. The Adjudicator’s report showed the Adjudicator made detailed inquiry of the Applicant’s claim. He considered the Applicant's case thoroughly. There was no evidence the Adjudicator cherry-picked information or took into account irrelevant consideration. He had proper basis to disbelieve the Applicant's claim. He stated his finding with clear reasons.
47. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. There is no substance in any of the complaints by the Applicant. The Adjudicator had proper basis for his finding, conclusion and decision 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 claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
48. 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 dismissed.
Dated 20th day of February 2019
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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
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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 20/2/2019
Masnah
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 20/2/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 5860/17/1/144/I588
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1699/16 (formerly RBCZ 11793/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 110/2016 Kwok Cheuk Kin, para. 17.
[9] Ibid., para 19.
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