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HCAL 548/2019
[2022] HKCFI 694
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 548 of 2019
BETWEEN
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Surati |
Applicant |
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and |
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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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 10 January 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 March 2018 (the “Notice”) refusing her application for non-refoulement protection.
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 and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.
3. The Applicant is an Indonesian national, now aged 41. She arrived in Hong Kong on 9 March 2012 to take up employment as a foreign domestic helper. She overstayed since 6 March 2013 after the termination of her employment. After her arrest by the police on 2 July 2015 for breach of condition of stay, she made a claim for non-refoulement protection.
4. In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5]. Her claims were rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision dated 10 January 2019. She now seeks to apply for judicial review against the Decision.
The applicable legal principles
5. 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[6].
The Applicant’s case for protection
6. The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. In gist, her case is that she would be at risk of being harmed or killed by her former partner or foster parents for failing to meet their demand for money, if returned to Indonesia.
7. The Applicant was brought up by her foster parents since she was a few months old. She had been abused by her foster parents since she was about seven years old. She was beaten up and forced to do household chores. Between 1995 and 2005, she worked in a garment shop, a pharmacy, in a local clinic and as domestic helper in Malaysia. She gave her earnings to her foster parents because they had threatened to kill her if she did not do so to repay them for her upbringing. She had been whipped by her foster father for not earning money in 1999.
8. When she returned to Indonesia from Malaysia in 2005, she did not go back to her foster parents’ home and decided to settle in Malang. There she developed a romantic relationship with her former partner, Yuni. A few months later, she found out Yuni was a womanizer, gambler and heavy drinker. Yuni assaulted her if she did not “serve him well”. In 2006, she gave birth to a child but the child died immediately after birth. She was hospitalised for five days. When she returned home, she found Yuni had disappeared.
9. Two weeks later, two men came to her house and demanded her to leave because the house had been confiscated by them to settle Yuni’s debt. They threatened to kill her if she did not leave within two days. Not long after, Yuni called her and demanded money. When she refused, Yuni was infuriated. She was frightened and changed her telephone number. Thereafter she did not hear from Yuni again. The Applicant then took up employment in Taiwan. When she returned to Indonesia, she stayed low to avoid Yuni and her foster parents. However, during her return in April 2011, she met Yuni. Yuni threatened to kill her and forced her to give him money. Then, the Applicant came to work in Hong Kong in 2012.
10. The Applicant never reported the threats to the police because she believed the authorities could not offer her effective protection and she had no money to pay a bribe to the officers. She did not consider internal relocation plausible because she did not have the money and resources to do so and she believed Yuni and her foster parents may pry into her whereabouts using their personal resources.
The Decision of the Board
11. The Applicant gave evidence before the Board. The Board accepted that she had a miserable past, that she was bought up by her foster parents who abused her and demanded money from her, but found on the basis of her evidence at the hearing that their relationship was effectively severed 13 years ago when the Applicant refused to give them any more money. The Board also accepted that she had a brief and acrimonious relationship with Yuni. However, according to her evidence at the hearing, she had no contact with her foster family or Yuni since 2005 and 2006 respectively. The Board did not accept her evidence about the Yuni’s threat when she returned to Indonesia in 2011 as stated in her NCF, but preferred her contrary evidence given before the Board that she had terminated the relationship within Yuni and had not seen him for some 12 years. The Board was not satisfied that her foster parents or Yuni would be aware of her return to Indonesia, if she indeed returns, or that they would pursue or harm her after such a significant absence of contact between them. In conclusion, the Board found that the Applicant had failed to discharge the burden of proving the factual basis in support of her claims for protection under any of the four applicable grounds under the USM.
Grounds of the intended Judicial Review
12. In her supporting affirmation, the Applicant tried to explain the reason for her delay in filing the application. There is no need to labour on this issue because her application was made within time.
13. The other grounds raised in her supporting affirmation are:
(1) the Board failed to meet the high standard of procedural fairness in that the Applicant should be given a fair oral hearing with legal representation;
(2) the Board took into account irrelevant matters in assessing her claim;
(3) the Board did not give proper reasons for its Decision; and
(4) the Board had not taken all Country of Origin Information (“COI”) into account in its Decision.
Ground (1) – no legal representation at the oral hearing before the Board
14. The Applicant complained that the Board failed to meet the high standard of procedural fairness by providing her a fair oral hearing with legal representation. She had an oral hearing before the Board, though without legal representation. She was unable to give particulars of other unfairness.
15. In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.
16. The Applicants had the benefit of legal representation in presenting her case to the Director. All the benefits that legal representation could have afforded her were contained in her written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.
Ground (2) – taking irrelevant matters into account
17. The Applicant did not give any particulars of her complaint under this ground. The Board accepted the Applicant’s evidence about her personal background, her miserable past and unhappy relationship with Yuni. But it preferred her evidence at the oral hearing and found that she had severed her relationship with her foster parents and with Yuni since 2005 and 2006. It was on that basis that the Board made the crucial finding that the Applicant failed to discharge her burden of proving her fears and risk. The evidence which the Board preferred was the Applicant’s own evidence at the oral hearing. The fact that she severed her relationship with her foster parents and Yuni are material and relevant. The Applicant was unable to give any particulars of what irrelevant matters the Board had taken into account in reaching its Decision. There is no substance in this ground.
Ground (3) – The Board did not give proper reasons for its Decision
18. The Board had clearly set out the Applicant’s evidence in paragraphs 9 to 27 of the Decision, and its analysis and finding of primary facts in paragraphs 28 to 32. It then applied
the legal principles under the four applicable grounds under the USM to the facts found and reached its assessment of the Applicant’s claim under those grounds in paragraphs 33 to 49. In essence, on the basis of the Applicant’s evidence, it found that she had failed to discharge the burden of proving her entitlement to protection under the four applicable grounds: see paragraph 18 above. The Board had given proper and adequate reasons for its Decision. The Applicant was unable to give any particulars as to how the Board had failed.
Ground (4) – The Board failed to take all COI into account in its Decision
19. The Board did not quote any COI in its Decision. But it had in mind the relevance of COI and asked the Applicant about relocation or services for women in Indonesia: see paragraph 21 of the Decision. COI are usually useful in assisting the Board in determining availability of state protection and internal relocation if the fears and harms are established. However, in the circumstances of this case, there was no need to rely on COI as the Applicant had failed even to discharge the burden of proving the factual basis of her claim, ie her fears and risks.
Other grounds
20. The Applicant repeated her fear that Yuni could find her out if she is returned to Indonesia. This issue had been considered by the Board. It was the Applicant’s own evidence that she had not seen Yuni for some 12 years. Hence, the Board was not satisfied that Yunui would be aware of her return and, even if he would, the Board was not satisfied that he would pursue or harm her after such a significant absence of contact between them. This is a finding of fact solely within the province of the Board. There is no reason to overturn that finding in a judicial review.
21. The Applicant said that she is now married and is waiting for approval of her dependent visa application. She also said that there is a need for her to stay in Hong Kong to attend to her mother-in-law. These may be matters for the Director to consider in her visa application but not for the Court in deciding whether to grant her leave to apply for judicial review.
Assessment of the grounds for judicial review
22. Apart from considering her specific grounds of application, the Court also focussed on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality. 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 issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. The Board found that the Applicant failed to discharge her burden of proving her fears and risks. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. 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, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. Accordingly, the Applicant has no arguable grounds for her intended judicial review.
Conclusion
23. There is no substance in the Applicant’s grounds of application. The Decision is also utterly without fault. Her intended judicial review has no prospect of success. Hence, her application for leave to apply for judicial review of the Decision of the Board is refused.
Dated 23rd day of March 2022.
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(Allen LEE) |
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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 23/3/2022
Surati
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 23/3/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10925/18/3/377/I1207
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 298/18 (formerly as RBCZ 12732/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] [2018] HKCA 549
[2] 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
[3] 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”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at para 14(1)
[7] cacv 2/2018, (unreported) 23 March 2018
[8] [2018] HKCA 14
[9] [2018] HKCA 15
[10] [2018] HKCA 17
[11] [2018] HKCA 37
[12] (2004) 7 HKCFAR 187
[13] HCAL 51 of 2007
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