NITA DWI CAHYANI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1925/2018

[2020] HKCFI 1394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1925 of 2018

Application for Leave to Apply for Judicial Review

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

Following;

(1)  Extension of time for application for leave to apply for judicial review of the decision of Torture Claims Appeal Board dated 8 December 2017 be refused; and

(2)  Application for leave to apply for judicial review be dismissed.

IT IS FURTHER DIRECTED that:

(1)  If the applicants intend 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, they 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 applicants 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 Applicants:

THE APPLICATION

1.  The applicants are mother and son.  I shall refer to the first applicant as the applicant, the second applicant as applicant son unless otherwise stated below.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 8 December 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

The applicants

3.  The applicant came to Hong Kong as a domestic helper.  Her contract was prematurely terminated but she did not depart from Hong Kong since 21 March 2012.  She surrendered to the Immigration Department on 5 July 2012.  On 7 August 2012, she failed to report to the Immigration Department.  On 3 July 2013, she was intercepted by the Immigration Department during a field operation.  She was convicted of the charge of breach of condition of stay and was sentenced to imprisonment.  On 27 December 2013, she gave birth to the applicant son.  On 5 March 2014, she submitted a written signification for non-refoulement claim.  On 18 November 2014, she submitted a written signification for non-refoulement for the applicant son.

4.  The applicant claimed that if refouled, she and the applicant son would be in danger because of her change of religion.

5.  She claimed that her family in Indonesia were all devout Muslims.  She feared harm to herself and the applicant son from her brothers and uncles due to her conversion from Islam to Christianity and her being an unmarried mother. She changed her religion in 2013 because the father of the applicant son is a Christian.  She said that Sharia Law applied in her hometown, Aceh.

The Director’s Decisions

6.  The Director considered their applications in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

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

c.  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

d.  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”).

7.  By Notice of Decision dated 15 April 2015 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that the level of risks of being harmed or killed by her family members if they returned to Indonesia was low [23]; that reasonable state protection was available to them [26] and that internal relocation was an option open to them [28].

8.  By Notice of Further Decision dated 28 November 2016 (“the Director’s Further Decision”), the Director rejected their BOR 2 risk claim because they were unable to establish their claim by evidence.

The Board’s Decision

9.  The applicants appealed to the Board against the Director’s Decisions.  However, their Notice of Appeal was late.  The appeal was made to the Board on 12 May 2017 whereas the deadline for the appeal of the Director’s Decision is on 4 May 2015 and the Director’s Further Decision is on 14 December 2016.  See §§17 & 18 of the Board’s Decision.

10.  At the request of the Board, she had given explanations for the late filing of the Notice of appeal as summarized by the Adjudicator at paragraph 28:

a.  She no longer resided at the notified address at the time of the First Decision and the Further Decision;

b.  She faced difficulties due to her relationship with Mr G;

c.  she faced difficulties due to her pregnancy;

d.  she faced difficulties due to her having two children; and

e.  she had financial difficulties.

11.  For the reasons set out in the Board’s Decision [26-32], the Board, rejected all her reasons above.  The Board found that she had the duty of keeping the Director informed of her current address, which she had failed to do, and that there was no evidence, medical or otherwise to prove her stress or financial difficulties.

12.  The Board had also taken on board the following matters:

a.  she had a long history of not processing her and the applicant son’s non-refoulement applications in a timely way [32];

b.  the expedient disposal of Appeals is an important factor [33];

c.  the facts of the case by reference to the Director’s Decision and the Director’s Further Decision and found that even if he accepted all of her claims and Sharia Law applied to Aceh where her family lived, the option of relocation was open to her and therefore it appeared to the Board that there was little merit to her non-refoulement claim [34-38].

13.  The Board therefore found that her explanations were unpersuasive and it was not satisfied that by reason of special circumstances, it would be unjust not to allow their late filing against the Director’s Decision and the Director’s Further Decision, bearing in mind high standard of fairness in this case [39-40].

14.  The Board therefore considered that it was reasonable not to allow the applicants’ late filing against the Director’s Decision and the Director’s Further Decision.

Application for leave to apply for judicial review

15.  The applicants filed Form 86 on 13 September 2018 for leave to apply for judicial review of the Board’s Decision.  His application is out of time. The Court has to consider the merits of his case in order to determine whether time should be extended for his application.  

16.  In the applicant’s affirmation in support of their joint application, she said the Board had disregarded her dangerous situation.

DISCUSSION

17.  The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:

“ 17. Where a notice of appeal is filed out of time, s.37 ZT(2) mandates the Board to decide as a preliminary decision without a hearing whether it allows the late filing of the notice of appeal, and in doing so, to take account of “any other relevant matters of fact within the knowledge of the Board” apart from the explanation for the delay.

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.

19. … …

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.”

18.  It is obvious that the Board had fully considered the applicants’ circumstances and the merits of their appeal by reference to the facts in the Director’s Decision and the Director’s Further Decision.

19.  The ground above does not support their application.

20.  There is nothing to show that the Board had committed any error in coming to the conclusion.

21.  The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

22.  Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to extend time for them to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

23.  It is further directed that:

(1)  If the applicants intend 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, they 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 applicants 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.

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