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HCAL1085/2017
[2018] HKCFI 1177
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1085 of 2017
BETWEEN
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NONIK INDRAWATI |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is an Indonesia national. She is now aged 39 (DOB: 6 February 1979).
2. The Applicant claimed her life would be at risk if she was refouled to Indonesia. She feared she would be harmed by her family members and a man called Toni.
3. The Applicant came to Hong Kong to work as a domestic helper on 7 April 2009. Her employment contract was ended prematurely. She was required to leave Hong Kong before 7 August 2009. The Applicant, however, overstayed.
4. In early 2010, while the Applicant was in Hong Kong, her father borrowed 10 million Indonesia Rupiahs from his friend Jemino for medical expenses. There was no interest or payment deadline set down for the loan. Jemino only asked the Applicant's father to repay when he had money.
5. In the same year of 2010, the Applicant's father told the Applicant on the phone that he could not repay Jemino. He asked the Applicant to marry Jemino’s son Toni. The Applicant knew Toni had married three times. He was an alcoholic and was brutal to women. The Applicant feared Toni would harm her after marriage. She also feared her family would subject her to violence if she refused to marry Toni. The Applicant did not promise her father; she just cut the line.
6. In 2012, the Applicant came into contact with her mother again. The mother asked the Applicant to either help her father to repay the loan or to marry Toni. The mother repeatedly made such requests on the phone. She last contacted the Applicant in early 2017.
7. The Applicant said if she did not listen to her father, she would be harmed by her own family members. Her father and brother had hit her in the past when she did not listen to them. She also feared Toni would harm her if she was married to him.
8. The Applicant did not know whether the Indonesia authorities could protect her. She had not thought of the possibility of internal relocation.
9. The Applicant raised a torture claim on 1 March 2010 after she had overstayed in Hong Kong since 8 August 2009.
10. On 20 January 2012, the Director refused the Applicant’s torture claim.
11. On 23 June 2014, the Applicant lodged a non-refoulement claim.
12. Normally, in the two-tier Unified Screening Mechanism which has come into operation since 3 March 2014, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) would respectively consider an applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. However, in the present case the Applicant's torture claim had already been refused in January 2012 and there was no follow up action taken by the Applicant.[5] The Director would not review the Applicant’s claim again with respect to torture risk since there was no change of circumstances.
14. On 14 February 2017, the Director refused the Applicant's claim with respect to the three remaining applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR2 risk).
15. The Applicant appealed to the Board on 27 February 2017. The Adjudicator was aware the Applicant’s torture claim had been refused by the Director in January 2012. Nevertheless, she went on to consider the Applicant’s appeal with respect to all the four applicable grounds including torture risk.
16. On 1 December 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
17. On 15 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
18. Things happened in this order: –
| 2009-4-7 |
The Applicant came to Hong Kong to work as domestic helper. |
| 2009-7-24 |
The Applicant’s employment contract was terminated prematurely. She was required to leave Hong Kong on or before 2009-8-7 but she overstayed. |
| 2010-3-1 |
The Applicant raised a torture claim. |
| 2010-3-20 |
The Applicant was arrested by the police while overstaying. |
| 2012-1-20 |
The Director refused the Applicant’s torture claim. There was no appeal. |
| 2013-7-4 |
The Applicant was arrested by the police again after failing to answer recognizance. She was released on new recognizance. |
| 2014-6-23 |
The Applicant lodged a non-refoulement claim. |
| 2014-11-15 |
The Applicant was arrested by the police for the third time after failing to answer the new recognizance. |
| 2017-2-8 |
The Director interviewed the Applicant. |
| 2017-2-14 |
The Director refused the Applicant's claim with respect to these three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Director's decision”]. |
| 2017-2-27 |
The Applicant appealed to the Board. |
| 2017-11-3 |
The Applicant appeared before the Board for appeal. |
| 2017-12-1 |
The Board refused the Applicant's claim on all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Board’s decision”] |
| 2017-12-15 |
The Applicant applied for leave for judicial review. |
Respondents
19. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as proposed respondents: The Board is the first putative respondent; the Director is the second putative respondent.
20. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[6]
21. In the present case, the Director's decision dated 14 February 2017 was more than three months old by the time the Applicant filed her current application on 15 December 2017. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 1 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision (dated 14 February 2017) albeit late on 15 December 2017; the application against the Board’s decision was made within time.
Director of Immigration (the Director)
22. The Applicant had made a torture claim in March 2010. It was refused by the Director in January 2012. There was no appeal. The Director in 2017 only considered the Applicant's non-refoulement claim with respect to the other three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
23. In the Director’s decision dated 14 February 2017 the immigration officer did not make any specific finding on the Applicant’s credibility. However, in a number of places, the officer found the Applicant’s allegations short of proof.
24. The officer noted a major inconsistency in the Applicant’s claim. The Applicant previously said her father borrowed money from a bank and she was told to marry an old man, contrary to her present claim that the creditor was a person called Jemino and she was forced to marry Jemino’s son Toni.
25. Even on the strength of the Applicant’s claim, the officer considered there were no substantial grounds to believe the Applicant faced any real persecution risk, BOR3 risk or BOR2 risk that warranted non-refoulement protection.
26. The officer refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
TCAB/NCPO (“the Board”)
27. The Applicant appeared in person before the Board.
28. The Adjudicator was aware the Applicant’s torture claim had been refused by the Director in January 2012. She nevertheless went on to consider the Applicant’s appeal with respect to all the four applicable grounds including torture risk.
29. The Adjudicator found the Applicant was not truthful. She did not believe the Applicant had genuine fear of being subjected to harm as alleged. She was not satisfied that the Applicant faced any real torture risk, BOR2 risk, BOR3 risk or persecution risk. In light of her findings, the Adjudicator did not feel the need to consider the issues of state protection and internal relocation.
30. On 1 December 2017, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds.
Grounds of judicial review
31. In her affirmation, the Applicant repeated her family forced her to marry Toni. She said she suffered mentally. She was not satisfied with the Director’s decision and the Adjudicator’s decision. The Applicant complained the Director and the Adjudicator failed to conduct sufficient inquiry of the conditions of Indonesia; cherry-picked information; failed to conduct careful analysis of her case. She said she could not relocate herself to other parts of Indonesia.
Court hearing
32. In Form 86, the Applicant requested a hearing. The hearing took place on 15 May 2018. The Applicant was in person. An Indonesian interpreter rendered interpretation service in court.
33. In court, the Applicant confirmed she had stated in her affirmation all the grounds of judicial review. She did not elaborate or give specifics on any of those grounds.
34. The Applicant repeated it was dangerous for her to go back to Indonesia, where the creditor was still harassing her family for repayment.
Discussion
35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7]
Res judicata (Torture risk)
37. In this case, there is one special feature. The Director had considered and refused the Applicant's torture claim in 2012. The Applicant continued to stay in Hong Kong and raised a non-refoulement claim. In 2017, the Director did not consider the Applicant’s non-refoulement claim with respect to torture risk again but only in relation of the other three applicable grounds of persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). However, when the matter came before the Adjudicator, the latter chose to consider all the four applicable grounds including torture risk despite the Applicant’s appeal was only against the Director's decision in relation to the other three applicable grounds.
38. In 2012, the Director decided against the Applicant on her torture claim. There was no appeal. The torture risk issue was res judicata then. The Applicant continued to stay in Hong Kong. There had been no change of circumstances. The Applicant relied on the same allegations to raise her non-refoulement claim in June 2014. The torture risk issue was thus the same and should not be reconsidered. The Director was right to further consider the Applicant’s case only in relation to the other three applicable grounds of persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
39. The appeal filed by the Applicant on 27 February 2017 was against the Director's decision dated 14 February 2017. She was not appealing against the Director's earlier decision rendered in January 2012 on torture risk. Actually, she could not because that 2012 decision had well been time-barred for any appeal.
40. While the Adjudicator must deal with the Applicant’s complaint on a rehearing basis, she should not reconsider the torture risk issue which was res judicata. She could only consider the Applicant's claim with respect to the three remaining applicable grounds of persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk).
41. In any event, the Adjudicator found the Applicant not truthful in her claim and that the Applicant faced no real risk of any kind that warranted non-refoulement protection.
Merits of complaints
42. The Applicant’s complaints against the Director and the Adjudicator are vague. She cannot elaborate or give specifics in court.
43. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had carried out sufficient inquiry in the Applicant's case and analysed her claim carefully. There was no evidence of prejudice or cherry-picking of information. The Director had good basis to find the Applicant could relocate herself to other parts of Indonesia while the Adjudicator, in light of her finding that the Applicant's claim was incredible, was entitled to save herself from discussing internal relocation or state protection since the Applicant had no real risk that warranted non-refoulement protection.
44. None of the Applicant’s complaints against the Director or the Adjudicator was substantiated.
45. In my judgement, the Director and the Adjudicator had proper basis to find the Applicant was not entitled to non-refoulement protection. Their respective findings, conclusions and decisions were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. They had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Director and the Adjudicator gave careful consideration to the Applicant's claim. They applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
46. The Applicant’s complaints are not reasonably arguable either against the Director or the Board. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 5th day of June 2018
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(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
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 5/6/2018
NONIK INDRAWATI
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 5/6/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 6316/17/2/315/I637
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 3319/16 (formerly RBCZ 17/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] The Director's decision dated 14 February 2017, para 9.20.
[6] Order 53, rule 4 of the Rules of the High Court.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
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