WAHYUNI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL194/2018

[2018] HKCFI 2135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 194 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

Background

1.  The Applicant is a national of Indonesia. She is now aged 34 (DOB: 20 March 1984).

2.  The Applicant claimed she would be harmed or killed by her creditor Sunyoto because she was unable to repay the loan she owed him.

3.  The Applicant worked in Singapore as domestic helper between 2007 and 2010. She later came to Hong Kong to work as domestic helper in November 2010. On 19 March 2013, she left Hong Kong upon termination of employment contract.

4.  On 30 April 2013, the Applicant came to Hong Kong as visitor. However, she overstayed from 8 May 2013. She was arrested by the police three years later on 6 July 2016. In August 2016, she raised a non-refoulement claim.

5.  The Applicant said she came to know a friend called Sri in Singapore. Sri had experience in running business. The two kept in touch after the Applicant had left Singapore. When the Applicant returned to Indonesia from Hong Kong in 2013, she met Sri. The Applicant planned to set up a boutique. Sri would help her to run the shop including buying goods. It was agreed that Sri would earn 10% from the sales.

6.  Sri introduced the Applicant to borrow money from Sunyoto to start the business. The Applicant said Sunyoto had a lot of connections and many people were under him.

7.  Sunyoto later told the Applicant that he had given the loan money to Sri. The Applicant could not find Sri since then. She discovered the boutique was empty.

8.  The Applicant told Sunyoto of the situation. The following day, Sunyoto appeared at the Applicant's house with two bodyguards. He threatened to kill the Applicant if she could not repay the loan. One of the bodyguards assaulted the Applicant.

9.  The Applicant was not sure if Sri ran away with the money or Sri and Sunyoto were in joint enterprise to cheat her. Being in fear, the Applicant fled to a friend’s place.

10.  The Applicant learnt from her mother that Sunyoto had come to look for her again. She decided to come to Hong Kong. She landed in Hong Kong on 30 April 2013. However, she did not seek asylum immediately. She overstayed from 8 May 2013.

11.  The Applicant said her mother told her that Sunyoto was still looking for her.

12.  Since 2015, the Applicant had lost contact with her mother.

13.  The Applicant was arrested by the police on 6 July 2016 after having overstayed here for more than three years. In August 2016, she raised a non-refoulement claim to the Director of Immigration (“the Director”).

14.  The Director refused the Applicant's non-refoulement claim. The Applicant then appealed to the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”). She raised new allegations before the Adjudicator. The Applicant said Sunyoto had threatened her to marry him. She also alleged her mother would force her to convert from Christianity to Islam.

15.  The Applicant had never sought assistance from the police or authorities in Indonesia. She thought they would not intervene in private matters. She also thought that even if Sunyoto were caught, he would still send people to take her life.

16.  The Applicant said Sunyoto had a lot of connections in the country so internal relocation was not viable. She lamented she had no one to turn to in Indonesia.

17.  In the two‑tier screening process here (“the Unified Screening Mechanism”), the Director and 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

18.  On 8 February 2018, the Applicant applied for leave for judicial review.

Timeline

19.  Things happened in this order: –

2010-11-25	The Applicant came to Hong Kong to work as domestic helper.
2013-3-19	The Applicant left Hong Kong upon termination of employment contract.
2013-4-30	The Applicant came to Hong Kong as visitor. She overstayed from 8 May 2013.
2016-7-6	The Applicant was arrested by the police.
Aug 2016	The Applicant lodged a non-refoulement claim.
2016-11-29	The Director interviewed the Applicant.
2016-12-19	The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Director's decision”]
2017-10-31	The Applicant appeared before the Board for appeal.
2017-12-8	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
2018-2-8	The Applicant applied for leave for judicial review.

Respondent/Interested party

20.  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 complaint on a rehearing basis.

21.  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]

22.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party.

23.  The Adjudicator only represented the Board to deal with the Applicant's appeal. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus the Board is the putative respondent; the Director is the putative interested party

The Director's decision

24.  The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk that warranted non-refoulement protection. He also found reasonable state protection and internal relocation were available to the Applicant in any event. On 19 December 2016, the Director refused the Applicant’s 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 31 October 2017.

26.  The Adjudicator found the Applicant was inconsistent in her description of the loan amount and the interest rate. He also noted the Applicant raised two new allegations only at the appeal stage: (i) Sunyoto threatened her to marry him and (ii) her mother would force her to convert from Christianity to Islam. The Adjudicator did not accept the Applicant's explanations for the inconsistencies and the late addition of allegations. The Adjudicator also did not accept the Applicant's description of Sri’s involvement. He found the Applicant was not a reliable witness. He did not find her claim credible. The Adjudicator concluded the Applicant faced no risk that warranted non-refoulement  protection.[6]

27.  On 8 December 2017, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk.[7]

Grounds of judicial review

28.  In her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

29.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information; relied on information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable decisions.

30.  The Applicant mentioned she was not given sufficient legal representation. She also complained she was given the appeal bundle only a few days before the appeal hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused then. She complained the Adjudicator failed to make appropriate arrangement.

31.  Although the Applicant did not name the Director as respondent but only as interested party, she accused the Director decided on the BOR2 risk issue without screening. 

Court hearing

32.  The Applicant requested a hearing.  The hearing took place on 27 June 2018. An Indonesian interpreter provided assistance in court.

33.  The Applicant asked for adjournment. She said she was appealing against the Legal Aid refusal order. That appeal was to be heard on 17 August 2018.

34.  The Board’s decision came out on 8 December 2017. The Applicant took out the current application for leave for judicial review on 8 February 2018. She applied for legal aid more than two months later on 17 April 2018. The Director of Legal Aid refused her application on 30 May 2018.

35.  The Applicant failed to show why she could not have applied for legal aid earlier. She also failed to show she had a good chance of getting legal aid. The Applicant had no reason to justify her adjournment application. I thus refused that application.

36.  The Applicant said she spoke English but still required language assistance. A friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. She could not elaborate any of those grounds or give specifics.

37.  The Applicant confirmed she had submitted all the information and materials she had to the Director and the Adjudicator for their consideration of her non-refoulement claim.

Discussion

38.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

39.  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].

40.  The Applicant complained the Director had not screened her claim on BOR2 risk. That was not true. The Director had carefully and fully considered the Applicant’s claim in his single decision dated 19 December 2016 with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

41.  The Applicant complained she had not been given sufficient legal assistance. She had been represented by the Duty Lawyer Service up to the Director's decision. There was no evidence that she had re-applied for legal assistance from the Duty Lawyer Service afterwards. The Applicant also failed to show this court how her claim would be prejudiced or undermined by the lack of legal representation only in the later stages of the screening process. 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.[10]

42.  The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights.

43.  The Adjudicator found the Applicant's claim incredible. In light of such finding, it was not necessary for the Adjudicator to discuss such issues as human rights violation, state acquiescence, state protection, internal relocation and so on.

44.  The Applicant also complained the Adjudicator did not call for psychological and psychiatric reports. However, the Applicant failed to justify there was such a need. In fact, the Adjudicator disbelieved her claim.

45.  The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation in English. That showed the Applicant could find someone to assist her with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated her problem of getting interpretation/translation assistance and handling English documents.

46.  The Applicant complained she received the appeal bundle only a few days before the appeal hearing.

47.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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. 

48.  The Director in his letter dated 27 June 2018 confirmed that the Applicant received the appeal bundle on 23 October 2017. That was 8 calendar days (or 6 working days excluding a public holiday and a Sunday) prior to the hearing scheduled for 31 October 2017. Thus, the bundle was served on the Applicant in time.

49.  The bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

50.  A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. There was no evidence that she had so complained to the Adjudicator or asked for adjournment then.

51.  The Applicant said she answered all the questions honestly in the Board hearing.[13] That would mean she knew well what was asked and how to answer. She was not confused.

52.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information; relied on information not officially recognised or simply hearsay; cherry-picked information. The Applicant failed to be specific and there was no evidence to support such complaints.

53.  There are other vague complaints by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find 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 Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints can stand.

Conclusion

54.  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 the review.

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

[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 86-115.

[7] Ibid., paras 116-120.

[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[9] CACV 219/2018 [2018] HKCA 570, para 14(1).

[10] CACV 284/2017 Re: Paswan Shibu Lal, para 21.

[11] 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.

[12] 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.

[13] The Applicant's affirmation, Point 5 on page 20.