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HCAL269/2018
[2018] HKCFI 2414
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 269 of 2018
BETWEEN
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Evi Yunita
Masum Monira |
1st Applicant
2nd Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
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 Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The 1st Applicant (“A1”) is a national of Indonesia. She is now aged 26 (DOB: 17 January 1992). The 2nd Applicant (“A2”) is A1’s daughter born in Hong Kong. She is now aged 2 (DOB: 2 February 2016).
2. A1 applied for non-refoulement protection for herself and on behalf of A2, who was an infant. A2’s case rested entirely on A1’s claim.
3. A1 claimed she would be harmed or killed by her parents because they disapproved her marriage with a foreigner and her subsequent birth of A2. A1 also feared she would be harmed or killed by her creditor Budi.
4. A1 said that in 2014 her family needed money. She was made to borrow 200 million Indonesia rupiahs from a loan shark called Budi. Her family believed A1 would be able to repay Budi because A1 had found a job to work as domestic helper in Hong Kong.
5. A1 came to Hong Kong on 16 February 2014. For the first six months, the employment agency took away much of her salary so A1 could only send a little money to Indonesia to pay Budi.
6. In late 2014, A1 met a Bangladesh man called Masum in Hong Kong. She became pregnant in mid-2015. A1 and Masum got married in Hong Kong in October 2015. A1 did not tell her parents. She feared her parents would not accept her marriage and her child.
7. A1 was dismissed from her job in October 2015 when her employer found she was pregnant. A1 then had no money to send back to Indonesia. She told her father on the phone that she was pregnant and she had married Masum. Her father became furious. He said A1 should not return home or he would disown her and her child. He also said if A1 came back to Indonesia, he would kill her and the baby. A1’s mother was also furious with her.
8. In November 2015, A1 received a phone call from Budi. Budi asked A1 to pay him 200 million rupiahs. He threatened to kill A1 if she was not able to pay. Budi said if A1 returned to Indonesia, he would find her to kill her. A1 was scared so she overstayed in Hong Kong.
9. A1 had not reported her fear to the Indonesia police. She did not know if the police would help her.
10. A1 said she could not relocate to other places in Indonesia. She feared she would be harmed or killed by Budi and her father.
11. In the ensuing two-tier screening process here, 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 Applicants’ 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 21 February 2018, the Applicants applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2014-2-16 |
A1 came to Hong Kong to work as domestic helper. Her employment contract was prematurely terminated on 20 October 2015. She did not leave accordingly. |
| 2015-11-12 |
A1 began overstaying in Hong Kong. |
| 2015-11-18 |
A1 surrendered to the Immigration Department |
| 2016-2-2 |
A1 gave birth to A2. |
| 2016-6-27 |
A1 applied for non-refoulement protection for herself and on behalf of A2. |
| 2016-10-27 |
The Director refused the Applicants’ claim with respect to all the four applicable grounds:torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2017-11-23 |
The Applicants appeared before the Board for appeal. |
| 2018-1-10 |
The Board refused the Applicants’ claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-2- 21 |
The Applicants applied for leave for judicial review. |
Respondent/Interested party
14. 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 case on a rehearing basis.
15. 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].
16. In Form 86 (the notice of application for leave to apply for judicial review), the Applicants named the Board as respondent and the Director as interested party. The Board is the putative respondent; the Director is the putative interested party.
The Director's decision
17. The Director did not accept the Applicants faced any risk that warranted non-refoulement protection. He also considered reasonable state protection and internal relocation were available to the Applicants. On 27 October 2016, the Director refused the Applicants’ claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
The Board's decision
18. The Applicants appealed to the Board. The hearing took place on 23 November 2017. A1 spoke for herself and on behalf of A2.
19. The Adjudicator found a number of inconsistencies in A1’s allegations. These included A1’s description of her conversation with parents about the loan, its use and the money she had sent back to her family in Indonesia. The Adjudicator also found inconsistencies in A1's description of her conversation and interaction with Budi. The Adjudicator did not accept A1 was a truthful witness. She did not accept A1 faced harm from Budi.[6] The Adjudicator also found reasonable state protection was available to the Applicants in any event.[7]
20. Regarding A1's the other alleged fear, the Adjudicator accepted A1’s parents were upset and disappointed when they learnt A1 had become pregnant before marriage so much so that A1’s father said he would disown A1. However, the Adjudicator did not accept A1’s parents had threatened to harm or kill A1.[8] The Adjudicator further considered that if A1 really had to live away from home, there were organizations to offer her assistance as a single mother without support.[9]
21. The Adjudicator was not satisfied A1 and A2 faced any risk that warranted non-refoulement protection. On 10 January 2018, the Adjudicator refused the Applicants’ claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
22. In Form 86, A1 complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to self-represented claimants.
23. A1 complained the appeal bundle was served on her only on 17 November 2017 before the Board hearing scheduled for 23 November 21017. She said she was unrepresented and had limited skill in English. She had difficulty to find someone to translate the English documents for her understanding and preparation for the appeal. A1 said she was confused of what happened.
24. A1 also complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay.
Court hearing
25. A1 requested a hearing. The hearing took place on 3 July 2018. A1 and A2 were in person. Only A1 spoke in court. (A2 was too young to make any submission.) An Indonesian interpreter provided service in court.
26. A1 said someone helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. She, however, could not elaborate those grounds or give particulars of her complaints.
27. A1 said A2’s father (Masum) was a Bangladesh man now living in Hong Kong. A1 has been staying with him for four odd years. However, she does not know Masum’s exact status in Hong Kong though she knows he has also been applying for non-refoulement protection.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. 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’.[10] 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.” [11]
30. A1 mentioned she and her daughter were not represented for appeal to the Board. They had been represented by the Duty Lawyer Service up to the Director's decision dated 27 October 2016.
31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[12] A1 failed to show how the case of hers and A2’s would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. A1 raised her language problem. In the current application, someone helped her to prepare Form 86 and the affirmation. Apparently, A1 could find someone to assist in interpretation/translation and dealing with English documents at all material times. A1 had much exaggerated her problem of getting interpretation/translation assistance and handling English documents.
33. A1 complained she received the appeal bundle only on 17 November 2017 before the Board hearing scheduled for 23 November 2017.
34. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[13] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[14], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
35. The appeal bundle was served on the Applicant 6 calendar days (or 5 working days) prior to the Board hearing. Thus, the bundle was served on A1 in time.
36. The appeal bundle would consist mostly of documents that had been seen or submitted by A1 during the first-tier screening of her claim. The case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
37. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of A1. She failed to show she really needed more time to prepare for the appeal to the Board. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
38. The Applicant said she answered all the questions honestly in the Board hearing.[15] That would mean she knew well what was asked and how to answer. She was not confused.
39. There was no evidence that the Adjudicator had taken into account outdated cases or information not officially recognised or simply hearsay.
40. 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. The Adjudicator had engaged in joint endeavour with A1 in the screening process. A1 had been given reasonable and sufficient opportunities to state and elaborate the case of hers and A2’s. The Adjudicator was acquainted with the facts of the case. She considered the Applicants’ claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicants’ non-refoulement claim. None of the Applicants’ complaints is substantiated.
Conclusion
41. The Applicants’ complaints are not reasonably arguable. They have no realistic prospects of success in the sought judicial review. I therefore refuse to grant them leave for the review.
Dated 21st day of November 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 Applicants on 21/11/2018
Evi Yunita (A1) Masum Monira (A2)
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 21/11/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 5092/16/11/31/I494;
USM 5093/16/11/32/I4945
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2096/16 (formerly RBCZ/12384/16);
QA T/C 2097/16 (formerly RBCZ/12383/16)
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] CACV 54/2018, para 45.
[6] The Board's decision, paras 38-40.
[7] Ibid., para 41.
[8] Ibid., 43-44.
[9] Ibid., 45-48.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[11] CACV 219/2018 [2018] HKCA 570, para 14(1).
[12] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[13] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[14] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[15] Form 86, Point 9 on page 4.
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