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HCAL 519/2019
[2022] HKCFI 1219
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 519 of 2019
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SITI RIYANI |
Applicant |
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And
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Torture Claims Appeal Board /
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Putative Respondent |
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And
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Director of Immigration
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Putative
Interested Party |
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 To:
1. Extension of time to apply for leave to apply for Judicial Review be refused; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 December 2016 (the “Notice”) and the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) dated 24 May 2018 (the “Decision”).
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also.
3. The Applicant is an Indonesian national, now aged 47. She had previously come to work in Hong Kong as a foreign domestic helper from 2002 to 2004 and from 2007 to 2009. She last arrived at Hong Kong on 21 September 2009. She overstayed after her contract was terminated prematurely on 26 December 2009. She was arrested on 6 August 2012 for immigration-related offences and was sentenced to 12 months of imprisonment. On 14 March 2014, she lodged a non-refoulement claim.
4. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By a Notice of Decision dated 8 December 2016, the Director rejected her claims under all four applicable grounds. Her appealed to the Board against the Notice was dismissed by the Board’s Decision. On 22 February 2019, she applied for leave to apply for judicial review of that Decision.
5. The Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicants’ case
6. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her under legal advice.
7. The Applicant is a national of Indonesia. She was born and raised in Indonesia. She is an ethnic Javanese and her religion is Islam. She received 9 years of education and had 6 years of working experience as a domestic helper in Taiwan, Indonesia and Hong Kong. She was married in around 1993 or 1994 and has a son and a daughter.
8. In around 2000, her husband paid about 30 to 40 million Indonesian Rupiah to enable her to seek employment in Taiwan. She travelled to Taiwan to work as a foreign domestic helper but she was dismissed after a month. Her husband was angry and pressed her for repayment. They sometimes argued over the money.
9. In 2002, the Applicant told her husband that she would work in Hong Kong to repay him. However, since working in Hong Kong, she never repaid her husband. Instead, she remitted her salary to her mother for taking care of her children. She returned to Indonesia in 2004.
10. In around 2004 or 2005, her husband falsely accused her of having an affair with their mutual acquaintance. He kicked and punched the Applicant. Her husband beat her again over the same accusation in late 2005 and early 2007.
11. The Applicant decided to flee from her husband after the attack in early 2007. Under the pretext of taking her children to see their grandparents, she settled her children with her parents and sought employment in Hong Kong. She came to Hong Kong in June 2007 to work as a foreign domestic helper. She left Hong Kong on 5 August 2009 after completion of her contract.
12. Her last contract of employment commenced on 21 September 2009 but was prematurely terminated on 26 December 2009. She was afraid to return to Indonesia for fear of being killed by her husband.
13. She does not believe the police will protect citizens in general and is unaware of any non-governmental organizations protecting women’s human right in Indonesia. She also does not consider internal relocation a viable option as she believes her husband could locate her anywhere in Indonesia. This is because her husband and his family are Madurese which is very united and the third largest ethnic group in Indonesia with wide network of connection.
The finding of the Board
14. The Applicant gave evidence before the Board. She admitted that there was never any attempt on her life and that her husband had never explicitly threatened to kill her. The centrepiece of her case was her subjective fear of harm from her husband. The Board considered her evidence about her relationship with her husband contradictory, evasive and vague and that her evidence on her last contact with her husband was entirely unconvincing. The Board found her incredible and did not accept her evidence. The Board was satisfied that she does not have any subjective fear that she would face serious harm at the hands of her husband should she return to Indonesia. It therefore found that the Applicant had failed to establish the factual basis to support her claim of fear and risk under any applicable ground under the USM.
15. The Board also rejected her claim that her husband could find her anywhere in the country by virtue of his being a Madurese. The Board held that internal relocation is a viable option to avoid the risk and that it would not be unreasonable for her to relocate to other parts of the country.
Grounds for judicial review
16. The Applicant did not put forward any grounds for judicial review in the Form 86 or in her supporting affirmation. She had been invited by the Court via its letter dated 15 December 2021 to advise the Court of her first language and to file submissions. She did not respond. The letter was addressed to her address as stated by her in her supporting affirmation dated 22 February 2019. It has not been returned through the post. There was nothing to suggest she had moved or had not received the letter.
17. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].
18. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia.
Conclusion
19. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant not credible and that she has failed to prove the factual basis to support of her case. It was on that basis that the Board found that she has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. The court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
20. For the above reasons, leave to apply for judicial review was refused.
Dated 28th day of April 2022.
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( Mike MAK )
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
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 28/4/2022
SITI RIYANI
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 28/4/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5584/16/12/231/I549
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2209/16
(formerly RBCZ/3000109/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Section 37ZR of the Immigration Ordinance, Cap. 115
[2] [2018] HKCA 549
[3] 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
[4] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[5] 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
[6] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[7] [2018] HKCA 524 at [14(1)]
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