SITI NURUSSAADAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL681/2017

[2018] HKCFI 1560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 681 of 2017

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.  There are two Applicants A1 and A2. A1 is the mother (aged 40; DOB: 19 May 1978); A2 is her son (aged 2; DOB: 18 August 2015).  A1 is a national of Indonesia; A2 was born in Hong Kong.

2.  A1 claimed she already had a son born out of wedlock in Indonesia in 1998. She had abandoned that child. Some people in her country would harm or kill her for that. She gave birth to another son (“A2”) in Hong Kong in 2015 also out of wedlock. Her father threatened to kill her if she went back to Indonesia.

3.  A1 claimed her mother died when she was in primary school. Her father remarried and left home. A1 and her sister then lived with their maternal uncle.

4.  In 1996 (when A1 was about 18), she fell in love with a man called Agus. She got pregnant and Agus abandoned her. A1 felt she had humiliated her family. She dared not return to her uncle’s place. She stayed with a friend. Nevertheless, the villagers found out she was pregnant. Some twenty people went to look for her when she was 4 - 5 months pregnant. They insulted her and tried to expel her from the village. A1 feared those people would harm her. She left her village for another city. A1 did not report the matter to the police. She said the police would ask for bribe but could not help her. She was also scared of the police.

5.  In 1998, A1 gave birth to a son. She abandoned the baby immediately. Later, she went to Singapore to work as a domestic helper. 

6.  A1 returned to Indonesia in 2000. She continued to work as domestic helper at different places in Surabaya. She had to register with the neighbourhood association in the area. A1 said people would treat her like a criminal if they knew she had abandoned a child born out of wedlock. They would harm her and the police would not help her. Therefore, A1 lied to others about her past. In such circumstance, she stayed in Surabaya uneventfully from 2000 to 2009.

7.  In 2009, A1 met her current boyfriend Mohammad Farooq (“Farooq”) on the Internet. He asked her to come to Hong Kong to meet him.

8.  A1 arrived in Hong Kong on 17 February 2009 as visitor. She was permitted to stay until 19 March 2009. She overstayed. The Immigration Department required her to leave on before 28 March 2009. However, A1 continued to overstay. She was arrested by the police on 5 May 2009. She lodged a torture claim[1] five months later in October 2009. Such claim was refused by the Director on 3 May 2013.  She then appealed to the Board. On 18 August 2014, the Board refused her appeal.

9.  In 2015, A1 intended to go back to Indonesia with Farooq. She contacted her father. Her father became very angry when he knew she was pregnant. He threatened to kill A1 and the baby to be born. He also threatened he would tell all the villagers about her.

10.  A1 stayed in Hong Kong and raised a non-refoulement claim on 22 June 2015. She gave birth to A2 on 18 August 2015. On 5 January 2016, she also lodged a non-refoulement claim for A2.

11.  A1 did not know if the Indonesia police could help her.  She said internal relocation was not viable in her case.

12.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) refused the two applicants’ claims with respect to these three applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iii) risk of violation of the right to life (BOR2 risk)[4]. The Director and the Board also refused A2’s claim with respect to the fourth applicable ground: (iv) risk of torture. [A1’s claim of torture risk had already been disposed of in 2013/2014.]

13.  On 26 September 2017, A1 and A2 applied for leave for judicial review.

Chronology of events

14.  Things happened in this order: –

2009-2-17	A1 arrived in Hong Kong from Indonesia as visitor. She was finally required to leave Hong Kong on or before 28 March 2009.
2009-5-5	A1 was arrested by the police while overstaying.
Oct 2009	A1 lodged a torture claim.
2013-4-18	The Director interviewed A1.
2013-5-3	The Director refused A1’s torture claim.
2013-5-15	A1 appealed to the Board on torture claim.
2013-5-22	A1 lodged a non-refoulement claim.
2014-8-18	The Board refused A1’s appeal on torture claim.
2015-5-18	A1 applied to withdraw her non-refoulement claim.
2015-6-19	A1 requested to reopen her non-refoulement claim.
2015-8-18	A1 gave birth to A2.
2015-12-28	A1 lodged a non-refoulement claim for A2.
2016-8-30	The Director interviewed A1 again.
2016-10-19	The Director invited A1 to submit additional facts for the consideration of BOR2 risk.
2016-11-2	A1 failed to submit any additional facts by the deadline or thereafter.
2016-11-7	The Director refused A1’s non-refoulement claim with respect to (i) persecution risk, (ii) CIDTP risk (BOR3) risk and (iii) life risk (BOR2 risk). [“the Director's decision A1”]
	The Director refused A2’s non-refoulement claim with respect to (i) persecution risk, (ii) CIDTP risk (BOR3) risk, (iii) life risk (BOR2 risk) and (iv) torture risk. [“the Director's decision A2”]
2017-8-9	A1 and A2 appeared before the Board for appeal.
2017-9-22	The Adjudicator refused A1’s non-refoulement claim with respect to (i) persecution risk, (ii) CIDTP risk (BOR3) risk and (iii) life risk (BOR2 risk). [“the Board’s decision A1”]
	The Adjudicator refused A2’s non-refoulement claim with respect to (i) persecution risk, (ii) CIDTP risk (BOR3) risk, (iii) life risk (BOR2 risk) and (iv) torture risk. [“the Board's decision A2”]
2017-9-26	A1 and A2 applied for leave for judicial review.

Respondents

15.  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.

16.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicants named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.

17.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

18.  In the present case, the Director's decisions dated 7 November 2016 against A1 and A2 were more than three months old by the time the Applicants filed their applications for judicial review on 26 September 2017. However, A1 and A2 should not seek judicial review against the Director's decisions before the Board rendered its appeal decisions against them on 22 September 2017. Therefore, I consider there is a good reason to allow the A1 and A2 to apply for leave for judicial review against the Director's decisions albeit late on 26 September 2017; the application against the Board's decisions was made in time.

Director of Immigration (the Director)

19.  In the Director’s decisions against A1 and A2 (dated 7 November 2016), the immigration officer did not make specific findings on A1's credibility. (A2 was too young to give evidence. His case was built solely on his mother A1’s claim.)

20.  However, even on the strength of A1’s allegations the officer considered the level of risk of harm against A1 and A2 was low. The officer was not satisfied the villagers had real intention to kill them.  There was also no evidence to prove A1’s father would subject A1 and A2 to harm.

21.  The officer found that A1’s perceived risk was not instigated by the state or officials or persons acting in official capacity.

22.  The officer was aware there were reports of corruption in Indonesia. Yet, there were also reports showing the Indonesia government had taken practical steps to monitor the police.  The officer did not accept the Indonesia government was unable to protect A1. It was only A1 had not sought assistance due to her own distrust of the authorities. The officer did not accept reasonable state protection was not available.

23.  The officer also considered A1 had the ability to live elsewhere in Indonesia. There was at least one non-government organization called PEKKA that could help single mothers in Indonesia. Reasonable internal relocation was therefore viable.

24.  The officer did not accept A1 and A2 faced any real persecution risk, BOR3 risk and BOR2 risk. He also did not accept A2 faced any real torture risk. [A1’s claim of torture risk had already been disposed of in 2013/2014.]

25.  The officer refused A1’s non-refoulement claim with respect to these three applicable grounds: persecution risk, BOR3 risk and BOR2 risk. He also refused A2’s non-refoulement claim with respect to all the four applicable grounds: persecution risk, BOR3 risk, BOR2 risk and torture risk.

TCAB/NCPO (the Board)

26.  The Adjudicator found there were inconsistencies in A1’s allegations. (A2 was too young to give evidence. His case was built solely on his mother A1’s claim.) However, even on the strength of the A1's allegations the Adjudicator found A1 had not suffered any ill-treatment.

27.  The Adjudicator understood A1 might face difficulties in Indonesia but there were improvements in Indonesia allowing women greater access to family and religious courts and also greater access to legal identity documents. The Adjudicator also considered that A1 was able to relocate herself with A2 in Indonesia.

28.  The Adjudicator refused A1’s non-refoulement claim with respect to persecution risk, BOR3 risk and BOR2 risk. He also refused A2’s non-refoulement claim with respect to persecution risk, BOR3 risk, BOR2 risk and torture risk.

Grounds for judicial review

29.  In her affirmation, A1 listed these complaints: –

a.  lack of legal representation;

b.  lack of language assistance;

c.  lack of fair hearing.

Court hearing

30.  In Form 86, the Applicant requested a hearing.  The hearing took place on 13 June 2018. A1 and A2 were in person. An Indonesia interpreter rendered interpretation service in court. Only A1 made submission.

31.  A1 said all the grounds of her application for leave for judicial review were in the documents. She did not elaborate those grounds.

32.  A1 said she was still with Farooq (A2’ father). They had not yet married. Farooq came from Pakistan. Although Farooq had been a Hong Kong resident for 30 years, his English was not good. A1 herself knew only a little English. However, she admitted there was nothing to stop her from going to a lawyer for assistance. In fact, Form 86 and her affirmation for the current application for leave for judicial review were prepared by a lawyer.

Discussion

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

34.  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]

Lack of legal representation

35.  A1 complained she was not provided with legal assistance after the Director's decision dated 7 November 2016.

36.  The Court of Appeal has repeatedly stated an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[7] A1 cannot demonstrate to this court how her case or A2’s case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

Lack of language assistance

37.  A1 complained there was sufficient interpretation/translation assistance.

38.  In court, A1 admitted a lawyer helped her to prepare Form 86 and the affirmation for the current application for leave for judicial review. She admitted there was nothing to prevent her from going to a lawyer for assistance (legal/language). Of course, she would have to pay for the lawyer’s service but that was not a good ground to complain she was short of interpretation/translation assistance.

39.  A1 complained she was not given a translation copy of the non-refoulement claim form (“NCF”). Therefore, she could not find out if the interpreter had been translating /interpreting the basis of her claim properly. A1 was merely speculating. It is not a proper ground of complaint.

Lack of fair hearing

40.  A1 complained the Director was excused from attending the appeal on 9 August 2017 before the Adjudicator. I cannot see how the Director's excused absence would prejudice the Applicants’ appeal.

41.  I have reviewed the Director's decisions and the Adjudicator’s decisions under ‘rigorous examination and anxious scrutiny’. The Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in A1’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with A1 in the inquiry process. A1 had been given reasonable and sufficient opportunities to state and elaborate her case and her son’s case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and they applied the law correctly. They considered the claims of A1 and A2 carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the non-refoulement claims of A1 and A2.

Conclusion

42.  A1’s complaints (for A1 herself and for her son A2) are not reasonably arguable either against the Director or the Board. The two applicants have no realistic prospects of success in the sought judicial review. I therefore refuse to grant them 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] Order 53, rule 4 of the Rules of the High Court.

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

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