SITI SARMIATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1148/2017

[2018] HKCFI 2134

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1148 of 2017

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

Following:

Leave to apply for judicial review be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of Indonesia. She is now aged 41 (DOB: 12 May 1977). 

2.  The Applicant claimed that her life would be endangered by her husband Siswanto and a loan shark called Hargo. Siswanto was an abusive husband. He made the Applicant borrow from Hargo but did not shoulder repayment. Hargo pressed the Applicant hard for payment.

3.  The Applicant said she married Siswanto in 1997. Two years later, they had a daughter. Siswanto later lost his job and became an alcoholic. He abused the Applicant frequently. The Applicant did not report the matter to the police for fear that it would make matters worse.

4.  In 2000, Siswanto wanted to start a business. He made the Applicant borrow 50 million Indonesian Rupiahs from a moneylender called Hargo.

5.  Siswanto’s business was unsuccessful. He turned to gambling. In order to pay Hargo, the Applicant went to work as domestic helper in Taiwan between 2000 and 2003.

6.  The Applicant returned to Indonesia in 2003. Siswanto continued to use violence on her. The Applicant still did not report the assaults to the police.

7.  In May 2005, Hargo demanded payment. He said Siswanto never paid him. The Applicant told Hargo she would be able to pay him once she went to work in Hong Kong.

8.  The Applicant went to Hong Kong to work as domestic helper in 2005. She remitted money to Siswanto for him to repay Hargo.

9.  In October 2008, the Applicant returned to Indonesia. Hargo came to demand payment again.  He threatened to take her daughter away if she would not pay. The Applicant promised Hargo that she would send him money from Hong Kong.

10.  The Applicant returned to work in Hong Kong in the same month. However, she was dismissed soon. The Applicant returned to Indonesia. She took her mother and daughter to live in her sister’s place. 

11.  In February 2009, the Applicant came to Hong Kong again. She returned to Indonesia in May 2010. She had not met Siswanto. The Applicant came to Hong Kong again in July 2010 and left later.

12.  The Applicant's last entered Hong Kong on 15 July 2011. Her employment contract was terminated in January 2012. The Applicant feared Siswanto and Hargo would kill her. She overstayed in Hong Kong. However, she did not seek asylum immediately.

13.  The Applicant was arrested a year later on 7 February 2013. Then she sought non-refoulement protection.

14.  The Applicant said she had made no contact with Siswanto for some years. She was seeking divorce so as to dissociate from him and the loan owed by him to Hargo.

15.  The Applicant said the police in Indonesia would not assist in such loan dispute because it was considered as a private matter.

16.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition office (“TCAB/NCPO” or simply “the Board”) respectively refused the 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].

17.  On 28 December 2017, the Applicant applied for leave for judicial review.

Timeline

18.  Things happened in this order: –

2005	The Applicant came to Hong Kong to work as domestic helper.
2008-10-5	The Applicant returned to Indonesia.
Oct 2008	The Applicant came to Hong Kong to continue her work. She was soon dismissed and went back to Indonesia.
Feb 2009	The Applicant came to Hong Kong again.
May 2010	The Applicant returned to Indonesia.
July 2010	The Applicant came to Hong Kong again. She later left the territory.
2011-7-15	The Applicant last entered Hong Kong to work as domestic helper. Her employment contract was terminated prematurely on 28 January 2012. She did not leave Hong Kong accordingly.
2013-2-7	The Applicant was arrested by the police.
Mar 2013	The Applicant raised a torture claim.
Feb 2014	The Applicant lodged a non-refoulement claim.
2016-8-8	The Director interviewed the Applicant.
2016-8-10	The Director interviewed the Applicant again.
2016-8-18	The Director refused the Applicant’s claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk). [“the Director's decision”]
2017-7-26	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-8-9	The Applicant failed to submit additional facts by the deadline and thereafter.
2017-8-11	The Director refused the Applicant’s claim with respect to the fourth applicable ground: risk (BOR2 risk). [“the Director's further decision”]
2017-9-12	The Applicant appeared before the Board for appeal.
2017-12-14	The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds.
2017-12-28	The Applicant applied for leave for judicial review.

Respondents

19.  The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.

20.  In Form 86, the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

21.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only.

The Director's decisions

22.  In the Director’s decision dated 18 August 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk that warranted non-refoulement protection. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to those three applicable grounds.

23.  In the Director’s further decision dated 11 August 2017, the Director considered the Applicant failed to establish there was a personal and real risk of her rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk).

The Board's decision

24.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 12 September 2017.

25.  The Adjudicator accepted the Applicant was abused by her husband Siswanto. Siswanto had borrowed money from Hargo. The Applicant had gone overseas to work to earn money to repay Hargo. However, the Adjudicator noted the Applicant had not seen Siswanto for years. He would not know where the Applicant lived in Indonesia. The Applicant had certain family support from her mother, sister and uncle in Indonesia. The Adjudicator also considered that if Siswanto did find the Applicant and abuse her again, she could seek assistance from the Indonesian authorities and non-government organisations.[6]

26.  The Adjudicator noted the loan shark Hargo had not caused the Applicant any physical harm. The Applicant's fear was merely speculative. Her risk was low. In any event, reasonable state protection was available to the Applicant.[7]

27.  The Adjudicator found there was no real risk that warranted non-refoulement protection in the Applicant's case. On 14 December 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk. [8]

Grounds of judicial review

28.  In her affirmation, the Applicant complained the Adjudicator failed to properly consider the concept of extended state acquiescence; failed to conduct sufficient enquiry of the relevant country-of-origin information ("COI"); failed to consider the humanitarian reason in her case. The Applicant complained the Adjudicator had not focused on her fear and was wrong to consider her risk as low. The Applicant also accused the Adjudicator failed to explain why she concluded the Applicant would not be subjected to torture or other risks upon return to Indonesia.

Court hearing

29.  In Form 86, the Applicant requested a hearing.  The hearing took place on 13 June 2018. The Applicant had to clarify certain contents of her affirmation. The hearing was therefore adjourned to 27 June 2018. The Applicant was present again. An Indonesian interpreter provided assistance in court on both occasions.

30.  The Applicant said a friend helped her to prepare Form 86 and the affirmation. She finally confirmed all the grounds of her application were correctly stated in the affirmation. She had nothing to add.

31.  The Applicant also confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.

Discussion

32.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33.  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’.[9] Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [10].

34.  The Applicant complained the Adjudicator failed to conduct sufficient enquiry of relevant COI. That was not true. The Applicant's case was a simple one and the Adjudicator had considered sufficient COI to understand the relevant situation in Indonesia. The Adjudicator was entitled to conclude there were adequate state protection and services to protect and assist the Applicant in Indonesia.[11]

35.  The Adjudicator had not considered the concept of extended state acquiescence. She was not required to because it was not the Applicant's case that the state of Indonesia had acquiesced. The Applicant had never turned to the authorities for help and there was no evidence the authorities knew of her alleged situation.

36.  The Applicant said the Adjudicator failed to consider her ‘humanitarian reason’. There was indeed no humanitarian concern in the Applicant's case.

37.  The Applicant complained the Adjudicator had not focused on her fear and was wrong to consider her risk as low. She further complained the Adjudicator failed to give sufficient reasons for her decision.

38.  The Adjudicator clearly understood the Applicant's situation including her fear. The Adjudicator accepted the Applicant was abused by her husband and had to repay the loan shark for him. Yet, the Applicant had not seen her husband for years and the loan shark had never harmed the Applicant. In any event, reasonable state protection was available to the Applicant both against the abusive husband and the demanding loan shark. The Adjudicator had stated clearly why she considered there was no real risk that warranted non-refoulement protection in the Applicant's case.[12]

39.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness.  She had 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 Adjudicator was acquainted with the facts and applied the law correctly. She had considered the Applicant's case carefully. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.

Conclusion

40.  The Applicant's complaints are not reasonably arguable.  She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.

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

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] CACV 54/2018, para 45.

[6] The Board's decision, paras 38-43.

[7] Ibid., paras 44-45.

[8] Ibid., paras 47-51.

[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[10] CACV 219/2018 [2018] HKCA 570, para 14(1).

[11] The Board's decision, paras 39-41.

[12] Ibid., paras 38-51.