|
HCAL 529/2019
[2022] HKCFI 175
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 529 of 2019
BETWEEN
|
Rudiana Sukarlin |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
|
1st Putative Respondent
|
|
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 20 February 2019 (the “Decision”). The Director of Immigration (the “Director”) is named as a proposed respondent. The Applicant has not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
2. The Applicant has not identified the decision of the Director in respect of which she sought judicial review. As the Board dismissed her appeal against the decision of the Director dismissing her appeal against the decision of the Director in his Notice of Decision dated 4 September 2018 (the “Notice”) refusing her claims for non-refoulement protection, it is assumed that the decision in that Notice is also the subject matter of her application. As reflected by the affirmation she filed in support of her application, this assumption is correct.
3. 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 The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].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 her complaints against the Director as directed at the Board also.
4. The Applicant first came to work in Hong Kong as a foreign domestic helper in 2004. She last arrived in Hong Kong on 30 January 2010 and was permitted to stay in Hong Kong until 5 May 2011 or two weeks after the termination of her contract of employment, whichever the earlier. Her contract was prematurely terminated on 26 July 2010. She did not leave and remained as an over-stayer since 10 August 2010. She surrendered herself to the Immigration Department on 16 August 2010. She was prosecuted of the offence of breach of condition of stay. She was convicted and sentenced to two weeks’ imprisonment, suspended for three years.
5. The Applicant was released on recognizance. She made a torture claim under the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Her claim was rejected by the Director on 14 September 2012. She did not appeal. That decision became final.
6. She was again arrested by the police on 30 December 2012 for having failed to report her recognizance since 7 August 2012. She was referred to the Immigration Department and was again released on recognizance.
7. She lodged a non-refoulement claim by way of a written representation dated 16 September 2013. She claimed that she would be harmed or killed by her husband for refusing his request for reconciliation and his demand for money.
8. In due course, her non-refoulement claims were assessed on the three remaining applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[2]; Persecution Risk[3]and BOR 2 Risk[4]. By the Notice dated 4 September 2018, the Director rejected her claims. She appealed to the Board. Her appeal was dismissed by the Board’s Decision dated 20 February 2019. On 25 February 2019, she sought leave to apply for judicial review against the Decision.
The Applicant’s case
9. The following is a summary of the Applicant’s case based on the information she submitted to the Immigration Department as contained in the hearing bundle before the Board.
10. The Applicant is an Indonesian national born in East Java. She is now aged 48 and believes in Islam. She had received nine years’ education.
11. Her husband was a farm labourer. She gave birth to her daughter in 1995. Later, her husband indulged in drinking. Whenever he was drunk, he scolded her and beat her. She suffered bruises and went to a nearby clinic for treatment. Once, she suffered an open wound in her right arm which required seven stitches. It took more than a month for the wound to fully recover. That presumably was the most serious assault on her. She never reported the assaults to the police. She did not want her husband to be arrested as he was the sole breadwinner of the family. The Applicant hoped that one day her husband would amend his ways.
12. In late 1990s, she went to work in Singapore as a domestic helper. For fear that her husband would hurt her daughter, she sent her to live with someone else. She does not know her whereabouts.
13. Upon realising that she would go to work in Singapore, her husband suggested to buy a house in Indonesia so that he could live with her and their daughter and demanded her to remit all her salaries to him. Believing in her husband, initially she did as she was told. Later, she stopped the remittance when she discovered her husband lied.
14. During her last telephone conversation with her husband before returning to Indonesia, she refused his demand for money. Her husband threatened to kill her if she did not send all her money to him. She was shocked and scared after hearing the death threat. She lived with her friend for three months upon returning to Indonesia. Her husband was unable to contact her.
15. In around 2000, she went to work in Taiwan. On her return to Indonesia in late 2003 or early 2004, she stayed in the employment agency’s accommodation until she went to work in Hong Kong in February 2004.
16. She returned to Indonesia in 2008 and stayed in the agency’s accommodation for about week before returning to Hong Kong on 7 February 2008 to continue with her employment. However, her employment was prematurely terminated in July 2010.
17. According to the latest information from her neighbours, her husband had married another woman and has four children.
The finding of the Board
18. At the oral hearing before the Board, the Applicant adopted all the information contained in the hearing bundle which is basically as summarised above. She confirmed that it was before she left for Singapore to work that her husband threatened to kill her.
19. The Applicant’s case is founded on her fear that her husband would harm or kill her for refusing his request for reconciliation and his demand of money. However, on her evidence, her husband had married another woman and has four other children. There was no evidence of any request by her husband for reconciliation. Besides, reconciliation is inconsistent with the husband’s second marriage. Furthermore, even accepting her evidence in its totality, the Board found that the injuries suffered by the Applicant were minor and did not attain the minimum level of severity to qualify as torture under BOR 3 Risk ground.
20. For the same reason, the Board found that the Applicant’s case is purely a case of a domestic dispute. The ill-treatment she suffered were minor and had nothing to do with the issue of race, religion, nationality, membership of a particular social group or political opinion which are essential to a claim based on Persecution Risk ground.
21. As for the BOR 2 Risk ground, there is no evidence on which the Board could be satisfied that there are substantial or strong ground to believe that the Appellant will suffer the death penalty, arbitrary deprivation of life or genocide at the hands of her husband.
22. Furthermore, the Applicant is an adult with nine years’ education up to secondary school level and ample working experience as a domestic helper. Every time on her return to Indonesia from abroad, she stayed with her friend or the employment agency and had no problem or interference from her husband. The Board was satisfied that even if the risks were real, they could be avoided by internal relocation.
23. Accordingly, the Board found she was not qualified for non-refoulement protection under any of the three remaining applicable grounds under the USM and dismissed her appeal against the decision of the Director in the Notice.
Grounds for judicial review
24. In her affirmation filed in support of her application, the Applicant repeated her intention to seek leave to apply for judicial review of the decision of the Director in the Notice and the Decision of the Board. She exhibited those decisions. Obviously, she disagreed with those decisions, but she did not put forward any specific grounds in support of her intended application for judicial review. She is obviously seeking to challenge the Board’s conclusion and finding of fact.
The applicable legal principles
25. 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[5].
Conclusion
26. 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 burden of proof and standard of proof; and observed a very high standard of fairness. The Board took the Applicant’s evidence for granted. On her evidence, the Board found that her case was one of domestic dispute; the ill-treatment she suffered was minor; and her fear of harm was not well-founded. It was on that basis that the Board found that there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the three remaining applicable grounds. This conclusion was further supported by availability of internal relocation. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. 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 and irrationality. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
27. For the above reasons, leave to apply for judicial review was refused.
Dated 19th day of January 2022.
| |
( Allen LEE ) |
| |
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: |
|
|
|
|
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)). |
|
Sent to the Applicant
on 19/1/2022
Rudiana Sukarlin
Applicant’s ref. no:
Nil. |
|
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 19/1/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1
stPutative Respondent’s ref. no.:
USM 13385/18/9/146/I1453
Director of Immigration
2
ndPutative Respondent’s ref. no.: QA T/C 2882/18 (Formerly RBCZ 2001039/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] [2018] HKCA 549
[2] 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”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at para 14(1)
|