LAELA FITRIANI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1905/2018

[2020] HKCFI 726

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1905 of 2018

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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a national of the Indonesian. She came to Hong Kong as a domestic helper in 2010 and was permitted to stay until 1 January 2012. Her employment was terminated prematurely. She overstayed and was arrested 18 February 2016 for breach of condition of stay and taking up unapproved employment. She was convicted and sentenced to 5 months’ imprisonment. She lodged her non-refoulement claim on 30 May 2016.

3.  In her statements given to the Director and the Board, she claimed that if refouled, she would be killed by a man, Adi, who had sexually harassed her and she would be pressed by her creditor Anoh for repayment of the debt she borrowed from him.

4.  Her parents divorced when she was eight years old. She had never seen them again since then. Her grandfather brought her up. Her grandfather was a farmer and she helped him with his work. Adi owed a farmland where her grandfather worked on. He was a middle‑aged man, married. However, he sexually molested her since she was 12. Her grandfather had heart disease and had to borrow money from Adi to pay the medical expenses. In 2005, her grandfather suggested she marry Adi. Between 2005 and 2007, she had intimate relationship with Adi. But they never married. She went to Malaysia to work as a domestic helper, as agreed by Adi. She returned to Indonesia in 2009. In November 2010, she came across Adi in the street. She was taken to a hotel where he raped her. He was afraid that she would report this matter to police. Therefore, he went to her home from time to time to threaten her not to disclose the matter to anybody. She told her grandfather what happened. Her grandfather encouraged her to take up domestic employment in Hong Kong. She borrowed money from Anoh and paid the employment agent and stayed there for training for three months. Then, she came to Hong Kong.

The Director’s Decision

5.  The Director considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

6.  By Notice of Decision dated 23 January 2018 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board’s Decision

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 18 May 2018.

8.  By Decision dated 31 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.  The Board considered the applicant’s case and found that it accepted most parts of her stories, in particular, it accepted that she was molested and even raped by Adi and she would be pressed for repayment of loan from a creditor called Anoh. Based upon those accepted facts, the Board found that the sexual harassment and rape did not fall within the context of section 37U of the Ordinance relating to torture [60] and that such acts did not involve any government official in any official capacity [60]; that there was no evidence that Anoh would torture her for the debt [61]; that there would be state protection for her in Indonesia [63] and that it did not accept that there was a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia [63]. The Board further found that there was no evidence to suggest that the applicant would be sentenced to death for any criminal offence in Indonesia under the BOR 2 risk [67]. For the same reasons above, the Board did not accept that the applicant would face a real risk of severe pain or suffering amounting to BOR 2 risk and that state protection would be available to her for her fear of sexual molestation by Adi [77]. As to Persecution under RC, the Board found that having accepted that the applicant would be subjected to rape or sexual assault by Adi, it found it hard to say that those acts were covered under any of the five Convention grounds [90] and that state protection should be available and she could relocate herself to other parts of Indonesia [90 & 91].

10.  In her Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.  In her affirmation in support of her application dated 11 September 2018, the applicant relied upon the following grounds:

(1)     the Hearing Bundle was given to her shortly before the appeal hearing and she did not understand it as there was no translation;

(2)     she was not provided with legal representation for the appeal and the present application for leave for judicial review;

(3)     she did not obtain assistance on the language as English is not her mother language;

(4)     the Director had adopted a uniform approach in the screening and he had cherry picked the Country of Origin Information to defeat her claim;

(5)     the Board’s Decision was not read to her;

(6)     the Adjudicator’s finding that she could relocate herself in Indonesia was wrong as she had not assessed the geographical situations of Indonesia; and

(7)     the Adjudicator’s view that she would have state protection was also wrong.

DISCUSSION

The Director’s Decision

12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

13.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

14.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. Her lawyer had explained the Director’s Decision to her. The interpreter had explained the Hearing Bundle to her.

15.  She said that she was unable to answer all of the Adjudicator’s questions well because she was not clear about the questions. When asked why she did not clear with the Adjudicator before answering the questions, she did not give any answer.

16.  She also said that she could not fully understand the contents of the Hearing Bundle. When asked why she did not go to the Duty Lawyer Scheme, the Immigration Department or the Board for assistance, she simply said she did not know she could do so.

17.  I put the Board’s findings above to her and asked for her comments. She said that she had no comments.

18.  It is quite clear that the Board accepted the major parts of her alleged facts, in particular, Adi’s sexually molestation and even rape and her debt to Anoh. However, the Board had applied the relevant statutory provisions and the Convention to her case and found that her case did not come under the protection of the law and the Convention.

19.  Having rigorous examination and anxious scrutiny of the Board’s Decision, I find that there is nothing miss in the Adjudicator’s decision.

20.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application.

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