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HCAL708/2018
[2019] HKCFI 33
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 708 of 2018
BETWEEN
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Fadya Kholyqumina Rizky |
Applicant |
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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 a national of Indonesia. She is now aged 31 (DOB: 6 March 1987).
2. The Applicant claimed she would be harmed or killed by her father and the wife of a rich man, who wanted to marry her.
3. The Applicant had worked as domestic helper for different employers in Hong Kong intermittently since 1999. She befriended another Indonesian domestic helper called Tina in mid-2006 in Hong Kong.
4. In October 2008, the Applicant borrowed for Tina HK$25,000 from a finance company in Hong Kong. Tina then disappeared with the money. The finance company made calls to the Applicant's employer, leading to the Applicant being dismissed in January 2009.
5. In March 2009, the finance company sent people to the Applicant's family in Indonesia to demand payment. There were some policemen accompanying the debt collectors.
6. In order to pay those people, the Applicant's father borrowed money from a rich man in Indonesia. The rich man was willing to waive repayment from the Applicant's father on condition the Applicant would marry him. The Applicant had no choice but agreed. However, she soon left Indonesia and came to Hong Kong again on 28 March 2009 under the false identity of Siti Kholipah Binti Matali (ID2) to work as domestic helper.
7. In mid-2009, the Applicant learnt from her sister in Indonesia that the wife of the rich man was aware of the intended marriage. She threatened the Applicant's family that she would kill the Applicant.
8. The Applicant did not know if her family had reported the matter to the police. Soon, she lost contact with her family.
9. When the Applicant's employment contract was terminated prematurely in May 2009, she chose to overstay here.
10. The Applicant applied for refugee status with UNHCR in August 2009. Her application was concluded in January 2010. In August 2010, she was arrested by the police under ID2.
11. In September 2010, the Applicant lodged a torture claim. The Director of Immigration (“the Director”) refused her torture claim in February 2013. The Applicant did not appeal. She was sent back to Indonesia in April 2013.
12. After she was refouled to Indonesia, the Applicant came into contact with her father again. Her father was angry that the Applicant refused to marry the rich man. They argued. The father constantly abused the Applicant and even tried to rape her. The Applicant was injured bur she did not report her father to the police. She left home finally and moved to East Java.
13. On 24 April 2014, the Applicant came to Hong Kong again to work as domestic helper. This was her last entry into the territory. This time, she used the name Fadya Kholyqumina Rizky (“ID1”).
14. The Applicant was told by her sister that the employment agency had approached their father to demand a lot of money for having arranged the Applicant to go to work in Hong Kong. The father was angry and threatened to kill the Applicant. The sister asked the Applicant not to go back to Indonesia.
15. The Applicant's last employment contract here was terminated prematurely on 27 June 2014. She overstayed in Hong Kong from 12 July 2014. Thirteen months later in August 2015, she was arrested by the police. She raised a non-refoulement claim in October 2015.
16. The Applicant said she had not sought assistance from the Indonesia authorities. She said there was corruption in her country. She was just an ordinary person and could not get protection from the authorities.
17. The Applicant also said she lacked the means and ability to relocate herself to other parts of Indonesia.
18. In the ensuing two‑tier screening process here, 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
19. On 24 April 2018, the Applicant applied for leave for judicial review.
Timeline
20. Things happened in this order: –
| 1999- Nov 2002 |
The Applicant worked as domestic helper in Hong Kong. |
| Apr - Nov 2004 |
The Applicant again worked as domestic helper in Hong Kong. |
| Jun 2006 -Jan 2009 |
The Applicant further worked as domestic helper in Hong Kong. |
| 2009-3-28 |
The Applicant came to Hong Kong again to work as domestic helper under the false identity of Siti Kholipah Binti Matali (ID2). Her employment contract was terminated on 5 May 2009. She overstayed in Hong Kong from 20 May 2009. |
| Aug 2009 |
The Applicant applied for refugee status with UNHCR. Her application was closed by UNHCR in January 2010. |
| Aug 2010 |
The Applicant was arrested by the police under ID2. |
| Sept 2010 |
The Adjudicator lodged a torture claim. |
| 2013-2-21 |
The Director refused the Applicant's torture claim. She did not appeal. |
| 2013-4-3 |
The Applicant was sent back to Indonesia. |
| 2014-4-24 |
The Applicant last entered Hong Kong to work as domestic helper. This time, she came under the name of Fadya Kholyqumina Rizky (“ID1”). Her employment contract was terminated prematurely on 27 June 2014. She overstayed in Hong Kong from 12 July 2014 |
| 2015-8-13 |
The Applicant was arrested by the police for overstaying under ID1. |
| Oct 2015 |
The Applicant raised a non-refoulement claim. |
| 2016-9-9 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-7-14 |
The Director invited the Applicant to submit additional facts for the consideration of life risk (BOR2 risk). |
| 2017-7-28 |
The Applicant made submission to the Director by the deadline. |
| 2017-8-8 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2018-2-15 |
The Applicant appeared before the Board for appeal. |
| 2018-4-6 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-24 |
The Applicant applied for leave for judicial review. |
Respondents
21. 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.
22. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
23. 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 leave for 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 decision
24. The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
25. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 15 February 2018.
26. The Adjudicator found the Applicant's evidence vague and indirect. There were many inconsistencies in her allegations. The Applicant had added allegations and changed her version. For example, she told the Director that her father borrowed money from the rich man to help her to repay her loan but she told the Adjudicator her father borrowed money for himself.[6] The Applicant also added that her elder brother posed threat and danger to her apart from her father.[7]
27. The Adjudicator noted the Applicant could not produce proof of her loan allegedly taken out in Hong Kong. She had used two identities to gain entry into Hong Kong to work as domestic helper and tried to conceal she had previously worked in Singapore.
28. The Adjudicator considered all the evidence and concluded the Applicant was incredible. She found the Applicant fabricated her claim in order to prolong her stay in Hong Kong. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR 2 risk or BOR 3 risk. She refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
Grounds of judicial review
29. In her affirmation, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 23 above, I would deal with the current application in relation to the Board's decision only since the Director's decisions had gone on appeal to the Board as rehearing.
30. The Applicant said the Adjudicator failed to conduct sufficient inquiry and failed to evaluate relevant country-of-origin information ("COI"); failed to consider properly the issue of state protection; failed to take into account her psychological harm; wrongly decided her fear was low; wrongly decided she would not be subjected to any harm; misdirected herself in law; failed to give reasons for the assessment of BOR3 risk and had no sufficient basis to find there was a lack of BOR3 risk.
Court hearing
31. The hearing took place on 19 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
32. The Applicant said a friend helped her to prepare the documents. She confirmed all the grounds of judicial review were in her affirmation. She could not elaborate on those grounds.
33. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
34. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
35. 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’.[8] 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.” [9]
36. The Applicant complained the Adjudicator failed to consider her claim properly.
37. The Adjudicator considered the Applicant's allegations in detail. She found the Applicant's evidence vague and indirect. There were many inconsistencies in the Applicant's allegations. The Applicant had added allegations and changed her version. The Adjudicator considered all the evidence and concluded the Applicant was incredible. She found the Applicant fabricated her non-refoulement claim and thus refused the Applicant’s claim with respect to all the four applicable grounds. The Adjudicator had proper basis to come to her conclusion, which was not Wednesbury unreasonable.
38. The Adjudicator considered there was not any risk that warranted non-refoulement protection including BOR3 risk. The Adjudicator’s decision must be read as a whole. The Adjudicator had given detailed reasons of her analysis of the Applicant's case.
39. The Applicant complained the Adjudicator failed to take into account her psychological harm. As the Adjudicator disbelieved the Applicant’s claim of fear, there was really no fear or harm of any kind to be considered.
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 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 of the case. She considered the Applicant's claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated.
Conclusion
41. The Applicant's complaints are not reasonably. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.
Dated 9th day of January 2019
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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
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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 9/1/2019
Fadya Kholyqumina Rizky
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 9/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4944/16/9/323/1471
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1555/16 & RBCZ 9002773/17 (formerly RBCZ 13942/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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.74-76.
[7] Ibid., paras 89-93.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
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