Case Detail

HCAL 599/2017

[2019] HKCFI 2326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 599 OF 2017

___________________

BETWEEN
	Kasirah	Applicant
and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	Director of Immigration	Putative Interested Party

___________________

Before:

Deputy High Court Judge Woodcock in Court

Date of Hearing:	17 September 2019
Date of Decision:	4 October 2019

________________________

D E C I S I O N

________________________

1. This is an application for an extension of time to appeal against my decision dated 25 June 2018 refusing this applicant leave to apply for judicial review. The applicant may appeal as of right but has to observe the time limits to appeal an interlocutory order. The applicant had 14 days in which to apply to the Court of Appeal pursuant to Order 53 rule 3(4). She failed to do so. She now requires and seeks leave to extend time to appeal against that order. This application is dated 6 August 2019 and she has filed an affirmation to support it.

2. The applicant filed a Form 86 on 7 September 2017, a notice of application for leave to apply for judicial review. She did request an oral hearing and I set down a hearing date on 1 February 2018. The intended judicial review was against the decision of the Torture Claims Appeal Board (“TCAB”) dated 4 August 2017. The adjudicator of the TCAB rejected the applicant’s non-refoulement protection claim; she did not find the applicant was a genuine claimant. She found discrepancies and inconsistencies in her claim and evidence. In her decision, she set out those discrepancies and inconsistencies in full. She gave full reasons for her conclusions and dismissed the applicant’s appeal/petition.

3. The applicant was initially a foreign domestic helper from Indonesia legally working in Hong Kong from between 2006 and 2014. When her last contract was prematurely terminated, she did not depart within two weeks and overstayed from 24 April 2014. She was arrested by the Immigration Department on 7 April 2016 for overstaying and working illegally. She served a two-month term of imprisonment and then lodged a non-refoulement protection claim. She has recently been rearrested for illegally working and now remanded by the Immigration Department.

4. Despite the TCAB adjudicator’s findings that the applicant was not a genuine claimant, she went on to consider state protection and found that it was available if the applicant was at any risk. She went on to consider internal relocation and found that it would be a viable option without undue hardship for the applicant. She could return to Indonesia and relocate without undue hardship from her village where she lived with her abusive husband some 13 years ago.

5. I did consider with rigorous examination and anxious scrutiny the papers and grounds of that application for leave to apply for judicial review. The adjudicator’s decision was without fault. She analysed the applicant’s claim and evidence with care and I found no substance in the eight grounds of that application. Eight grounds that contained no particulars. I found no error of law by the adjudicator. I found no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.

6. In the applicant’s affirmation to support leave to appeal out of time, she suggests that she did not receive my order of 25 June 2018. She states that I reached my decision to refuse her leave to apply for judicial review unfairly because I did not give her an opportunity to clarify her situation in her country and explain her case. However, she retracted this ground during the oral hearing when I reminded her of the details of her submissions to me on 1 February 2018 when I considered leave to apply for judicial review. She also submitted that the 14-day time limit was insufficient for a litigant in person.

7. During the oral hearing she confirmed that she was, prior to her detention by the Immigration Department recently, still living at the same address she supplied in September 2017. Despite that, she did not receive my order. This was her reason for failing to comply with the 14-day time limit to file a notice of appeal.

8. In her summons, she suggests that she had a new ground of appeal but during the oral hearing, she was unable to articulate any ground. She only asked that she be allowed to apply again for judicial review. She repeated that she was still in danger at home in Indonesia and asked for another chance.

Conclusion

9. The delay is substantial, a delay of just over 13 months. I have verified her address had not changed. I am not satisfied she has a reasonable explanation for the delay in bringing the intended appeal.

10. In any event, the length of delay is not the only fact I should take into account when considering whether to grant an extension of time to file an appeal. It is not this court’s duty to reconsider an applicant’s claim but to consider whether the adjudicator of the TCAB made any error of law or whether there is evidence of procedural unfairness or a failure to adhere to a high standard of fairness. I found when I refused leave to apply for judicial review that the applicants claim was not reasonably arguable and there was no realistic prospect of success. Having heard from the applicant during the oral hearing for this application, I find there is no merit nor any real prospect of success in any intended appeal.

11. Having considered the lengthy and substantial delay, the lack of reasonable excuse for the delay and the lack of merit in this application, it would not be in the interests of justice to grant an extension of time. The applicant’s summons dated 26 August 2019 is dismissed.

	(Amanda Woodcock)
	Deputy High Court Judge

The applicant appeared in person.

HCAL599/2017

[2018] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 599 of 2017

BETWEEN

	Kasirah	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

consideration of the documents only; or
consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1. The applicant is an Indonesian national who was legally working in Hong Kong as a foreign domestic helper between 2006 and 2014. Her last contract commenced on 13 March 2014 but it was prematurely terminated on 9 April 2014. The applicant did not depart within two weeks and overstayed from 24 April 2014. She was arrested by the Immigration Department on 7 April 2016 for overstaying and working illegally. She served a two-month term of imprisonment. After she had served a sentence, the applicant lodged a non-refoulement protection claim.

2. The Director of Immigration (“the Director”) rejected the applicant’s claim on 31 October 2016. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 4 August 2017. She then filed a notice of application for leave to apply for judicial review on 7 September 2017 and requested an oral hearing. The applicant appeared in person on 1 February 2018 having had her legal aid application refused.

3. The basis of her claim is that if she were to return to Indonesia she would be harmed or even killed by her husband; she was a victim of domestic violence. Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only need to summarise it here.

4. The applicant was married in 2004 and has a daughter. She came to Hong Kong to work two years after her marriage because of her husband’s violent behaviour. She suffered three incidents of violence. The first assault by him was at the end of 2004 when she refused to settle a debt for him; he was drunk at the time and had brought a woman home as well. He slapped her three times and threw a chair that hit her in the back. She did report it to the police but was told it was a private family matter and they would not investigate it.

5. The second assault was in early 2005 when her husband hit her again when she refused to cook for him. He slapped her twice but did not seek help from the police on this occasion. In 2006 the applicant was assaulted for the third time when she refused to settle the debt for him. Her husband grabbed her by the neck and assaulted her with his bare hands for about 10 minutes. She sustained red marks all over her body but could not afford to see a doctor. She also found out that her husband had stolen her mother’s title deeds to the house and had sold it unbeknownst to them. The house was then repossessed by the bank when her husband did not repay the bank. Her parents and siblings had nowhere to live and had to stay with the applicant’s aunt nearby. The applicant then trained to come to Hong Kong to be a domestic helper and left Indonesia in 2006 without having any more contact with her husband since then.

6. The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);
(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);
(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and
(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7. The adjudicator conducted an oral hearing and treated the appeal as a rehearing. She correctly set out the law and key legal principles applicable to the four grounds. The applicant elected to answer questions at the appeal hearing. The adjudicator set out the applicant’s case and her assessment of her credibility in full in her decision.

8. The adjudicator found discrepancies in the applicant’s evidence which she asked her to explain. Her explanations were unsatisfactory, for example, in the appeal she gave evidence that her husband had many loans to repay and not just two as she had previously said at a screening interview with an Immigration officer. Another example was her evidence during the appeal that there were now two houses dishonestly sold by her husband and not one; both her mother’s house and her mother-in-law’s house. Another discrepancy was whether or not her husband had actually ever threatened to kill her. There were other discrepancies and contradictions that the adjudicator considered and set out in her decision, leading her to find the applicant was not a genuine claimant. She found that the applicant had “failed to establish the primary facts of her case”.

9. The adjudicator did however apply the law to the applicant’s evidence and found that even if she was telling the truth and had suffered injuries that she described she had not established torture as defined in section 37U(1) of the Immigration Ordinance. Her injuries did not meet the minimum level of severity to be defined as torture. The adjudicator also found that she was unable to satisfy the requirement to prove she would face a genuine and substantial risk if refouled.

10. The adjudicator found that when she applied the applicant’s evidence at its highest to all four grounds, the applicant had not made out a case for non-refoulement protection. Even if her evidence was true, she was not able to establish within the definition of torture under section 37U(1) that severe pain or suffering had been inflicted on her by her husband and that there was a real risk of torture by him if she returned to Indonesia.

11. The adjudicator found that the applicant’s claim, on her own facts if true, had failed to invoke the protection of BOR 2 or BOR 3. Lastly, the adjudicator found her fear of ill-treatment from an abusive husband did not fall within the definition of persecution, did not come within a Refugee Convention reason and her persecution risk claim failed. Despite her findings, the adjudicator went on to consider State protection and found that it was available if the applicant was at any risk. She also went on to consider internal relocation and found that it would be a viable option without undue hardship for the applicant. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. She analysed material, claims and evidence with care. The applicant’s grounds and complaints are not made out. I find no substance in the eight grounds of this application.

13. There are eight grounds in this affirmation and none contain any particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. For ground 7, the adjudicator certainly set out the correct standard of proof in his decision. There are no particulars here to illustrate where she has applied the incorrect standard. For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

14. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. Again particulars have not been given in relation to these grounds. She had no reason to go into detail considering the reason she dismissed the applicant’s appeal but nonetheless did consider State protection and internal relocation objectively. These grounds are not arguable.

15. Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights, has no merits. Consideration of these concepts do not arise unless there is a substantial risk of a real personal chance the applicant will be tortured or ill-treated if refouled. In this case, the adjudicator made a finding there is no substantial risk or a real personal chance.

16. In addition, the applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her. I was satisfied the applicant had the assistance of an interpreter. There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal. In any event, this application and this affirmation were made in English which casts doubt on this complaint.

17. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 25^th day of June 2018

(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

Notesfor the Applicant:

If leave has been granted, the Applicant or his solicitors must:

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)).

Sent to the Applicant on 25/6/2018

Kasirah

Applicant’s ref. no:
Nil.

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 25/6/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5248/16/11/187/I515

Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2117/16 (formerly RBCZ/12212/16)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

KASIRAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE [Decision on Leave Application]

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Files (2)

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;