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HCAL533/2018
[2019] HKCFI 27
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 533 of 2018
BETWEEN
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Marmi Bt Mardi Satimun |
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 45 (DOB: 1 January 1974).
2. The Applicant claimed that she would be harmed or killed by a man called Agus in Indonesia.
3. The Applicant worked as domestic helper in Saudi Arabia from December 2009 to March 2013. She also worked as domestic helper in Hong Kong from mid-2013 to mid-2014 and from January 2015 to February 2015. [The Applicant last entered Hong Kong on 23 January 2015.]
4. The Applicant said she was a divorced woman. Her ex-husband died shortly after the divorce. She could not say clearly when she was divorced.
5. The Applicant said Agus was his ex-husband’s good friend. He thought the Applicant was rich and tried to take advantage of her after the death of her ex-husband. Agus had been ‘eyeing’ on her properties. The Applicant claimed Agus was a powerful man and had connection with gangsters.
6. On 5 November 2014, when the Applicant was in Indonesia at home with her children, Agus came to ask the Applicant to marry him. The Applicant refused. Agus got angry. He assaulted the Applicant. Before he left the house, Agus said he would kill the Applicant if she would not marry him. He said he could find her anywhere.
7. On 11 December 2014, Agus came with some men and proposed to the Applicant again. The Applicant argued with him. She was assaulted and injured by Agus and his men.
8. On 5 January 2015, Agus again came with some men. He made the same proposal with threat to the Applicant. The Applicant was agitated. She threw a bowl at Agus. It caused bleeding on his forehead. Agus and his men then assaulted the Applicant. Agus said the Applicant must marry him and transfer her properties to him. The Applicant refused. Agus threatened to kill the Applicant no matter where she was.
9. Ten odd days later, on 23 January 2015 the Applicant last entered Hong Kong to work as domestic helper. Her employment contract was soon terminated on 2 February 2015. She did not leave the territory accordingly and overstayed from 17 February 2015. Thirteen months later on 16 March 2016, the Applicant surrendered to the Immigration Department and raised a non-refoulement claim subsequently.
10. The Applicant last contacted her brother in mid-2016. She was told that Agus was still looking for her. Agus also called the Applicant. She thus changed her mobile number and lost contact with her brother for some time. When she later regained contact with her brother, the latter said he had moved away from home due to problems involving Agus. The brother texted the Applicant to say Agus threatened him and demanded money. The matter was reported to the village head and the village head related it to the police. However, the police could not find Agus. The Applicant’s brother said he had to hide himself from Agus and his men.
11. The Applicant said the village head had not done anything to stop Agus. She said it was inconvenient to go to the Indonesia police for assistance. In any event, the police could not locate Agus.
12. The Applicant did not think internal relocation was viable. She said Agus had connections and could find her anywhere in Indonesia.
13. 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 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].
14. On 3 April 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2015-1-23 |
The Applicant last entered Hong Kong to work as domestic helper. |
| 2015-2-2 |
The Applicant's employment contract was terminated prematurely on 2 February 2015. She did not leave the territory accordingly. |
| 2015-2-17 |
The Applicant began overstaying in Hong Kong. |
| 2016-3-16 |
The Applicant surrendered to the Immigration Department. |
| 2016-9-21 |
The Applicant raise a non-refoulement claim. |
| 2017-1-23 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”] |
| 2018-2-1 |
The Applicant appeared before the Board for appeal. |
| 2018-3-21 |
The Board refused the Applicant’s appeal respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-3 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. 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.
18. 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 decision. Therefore, I shall deal with her application only in relation to the Board's decision.
The Director's decision
19. In his decision dated 23 January 2017, 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
20. The Applicant appealed to the Board. The Adjudicator interviewed her on 1 February 2018.
21. The Adjudicator found there were many inconsistent and unconvincing features in the Applicant's allegation. The Adjudicator found the Applicant's description of the three assaults by Agus vague and brief. The Adjudicator noted the Applicant could remember the exact dates of those incidents but she was not able to say clearly when other important events took place. For example, she could not tell when she was divorced from her ex-husband or when Agus started ‘eyeing’ on her properties. She also gave confusing evidence on whether the village head reported the matter to the police as a result of his brother’s complaint. The Adjudicator found the single text message allegedly coming from the Applicant's brother highly suspicious. He considered it to be false evidence. The Adjudicator did not believe Agus had harassed and threatened the Applicant or the Applicant's brother. He did not believe the Applicant had been assaulted by Agus and his men.
22. The Adjudicator considered internal relocation was viable in the Applicant’s case in any event.
23. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 21 March 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
24. In her affirmation, the Applicant complained against the Director and the Adjudicator.
25. As said in paragraph 18 above, I would deal with the current application only in relation to the Board's decision since the Director’s decision had gone on appeal to the Board as rehearing.
26. The Applicant complained the Adjudicator failed to conduct sufficient independent inquiry and critical analysis of relevant country-of-origin information ("COI"). The Adjudicator also cherry-picked information and failed to explain how he decided on his preference of COI.
27. The Applicant complained the Adjudicator failed to consider the issue of state protection properly and failed to consider her psychological strain.
28. The Applicant accused the Adjudicator misdirected himself in law and took into account irrelevant considerations. The Adjudicator was wrong to refuse her claim.
Court hearing
29. The hearing took place on 17 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
30. The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds. She merely said she did not want to go back to Indonesia because problems were still there.
31. 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
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’.[6] 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.” [7]
34. The Applicant complained the Adjudicator failed to conduct sufficient independent inquiry of relevant country-of-origin information ("COI"). He also failed to conduct critical analysis of COI and cherry-picked information to reach conclusions against her.
35. The Adjudicator found the Applicant’s claim incredible. He did not accept the Applicant faced any risk that warranted non-refoulement protection. The Adjudicator only referred to some basic COI to say internal relocation was available to the Applicant in any event.[8] The cited information was factual and no critical analysis was required. There was no evidence the Adjudicator cherry-picked information. His conclusion on internal relocation was not Wednesbury unreasonable.
36. The Applicant complained the Adjudicator failed to consider properly the issue of state protection. The Adjudicator need not consider such issue since he did not accept the Applicant’s claim of risk.
37. For the same reason, the Adjudicator need not consider the psychological impact of the Applicant's complained situation. The Adjudicator did not accept the Applicant faced any risk so there was no fear to be concerned with.
38. The Applicant accused the Adjudicator misdirected himself in law and took into account irrelevant considerations. The Applicant failed to be specific. There was no evidence to support such complaints.
39. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He 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. He 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
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 judicial review.
Dated 8th 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 8/1/2019
Marmi Bt Mardi Satimun
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 8/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 6053/17/2/52/I606
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2960/16 (formerly RBCZ 13294/16)
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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] The Board's decision, paras 81 and 114.
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