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HCAL 2247/2018
[2022] HKCFI 2539
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2247 of 2018
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Indah Rahmawati |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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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;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 7 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is to be dealt with on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper on 24 December 2007. However, her employment contract was terminated prematurely on 28 June 2008. She did not depart and had overstayed since 13 July 2008. On 2 December 2008, she was arrested by the police for overstaying and taking up unapproved employment. On 22 January 2009, she was released from prison. On 2 February 2009, she raised a torture claim, which was later withdrawn on 7 July 2009. On 11 September 2009, she requested to reopen her torture claim. Her torture claim was rejected on 25 November 2011.
5. On 27 October 2013, she lodged a non-refoulement claim. The applicant had since 9 November 2011 failed to report to recognizance as scheduled and absconded. She surrendered to the Immigration Department on 17 September 2015. Her claim was made on the basis that, if refouled, she would be harmed or killed by the debt collector.
6. According to the applicant, her father passed away in 2006, leaving a sum of debt at around 20, 000,000 rupiahs (approximately HK$19,000). The debt collector had been chasing them for repayments. He threatened them with a knife and also slapped the applicant once. Out of fear, she fled to Hong Kong for protection. Details of her claim are set out at paragraph 9 of the Notice of Decision dated 28 December 2017 by the Director (the “Director’s Decision”).
The Director’s Decision
7. The Director considered the applicant’s claim in relation to the following risks:
(1) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(2) 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
(3) 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”).
8. By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon her refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [18]; (ii) state protection would be available to her [19]; (iii) her delay in seeking international protection also undermined the imminence of the claimed fear of harm [20]; and (iv) internal relocation was a viable alternative [21].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board. On 12 April 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter and answered questions from the Board.
10. The Board first noted that the applicant had a poor immigration history and only raised her torture claim after being arrested for overstaying [39]. While the Board accepted she might receive threats and a slap on her face, it considered that the debt collector had shown no intention to pursue serious and further harms [40]. The Board also rejected her claim that she did not wish to separate with her husband as it was simply not a basis for her remaining in Hong Kong [43]. Independently considered, internal relocation was a viable alternative [45]-[46]. For these reasons, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant filed Form 86 dated 16 October 2018 for leave to apply for judicial review of the Board’s Decision.
12. In her affirmation in support of her application, the applicant set out her grounds, which I shall summarize below.
(1) She has now married with a family in Hong Kong. She only wants her family life in Hong Kong.
(2) That she did not seek protection when she first arrived in Hong Kong is because she believed Hong Kong is a safe place and the Hong Kong Government would protect her.
(3) It is unfair for the Board not to believe her story, which shows the adjudicator did not treat her fairly.
(4) She did not have the choice of having legal representation and interpretation service.
(5) It is unfair for the Board to assume that she would be safe back in Indonesia. Who is to guarantee her human rights and interests are protected if she returns to Indonesia?
(6) She has no confidence in the government of Indonesia.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …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.”
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
16. Of those grounds set out in paragraph 12 above, ground (1) does not give her right to stay in Hong Kong as the Director has the ultimate discretion[1]; ground (2) is irrelevant because the Board is entitled to take his factor into consider under the Ordinance[2]; ground (3) is only her bare allegation without evidence in support; ground (4): she is not entitled free legal representation at all proceedings as she had already had free legal representation at the screening state and that lack of interpretation service is not a ground in support of her application as held by the Court of Appeal[3]; ground (5) is also her bare assertion and she is not entitled to any guarantee of her safety, not even from the government of her own country; and ground (6) is irrelevant for the Board’s consideration.
17. There is no valid reason to challenge the Board’s Decision from the applicant.
18. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
19. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
20. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 1st day of September 2022
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(M.O. WONG)(Ms)
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 the Applicant’s 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 1 September 2022
Indah Rahmawati
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 1 September 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9902/18/1/175/I1002
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3051/17 (Formerly RBCZ 2001447/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re: BI v Director of Immigration & BH v Director of Immigration [2016] 2 HKLRD 520, §§96 & 97
[2] 37ZD.
Credibility of claimant
(1) In considering a torture claim, an immigration officer or the Appeal Board may take into account, as damaging the claimant’s credibility, the following behaviour of the claimant—
(b) a failure to take advantage of a reasonable opportunity to claim non-refoulement protection in respect of a torture risk State while in a place outside Hong Kong to which the Convention applies (other than a torture risk State);
[3] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].
The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held:
“Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”
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