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

HCAL599/2017

[2018] HKCFI 1342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 599 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indonesian national who was legally working in Hong Kong as a foreign domestic helper between 2006 and 2014.  Her last contract commenced on 13 March 2014 but it was prematurely terminated on 9 April 2014.  The applicant did not depart within two weeks and overstayed from 24 April 2014.  She was arrested by the Immigration Department on 7 April 2016 for overstaying and working illegally.  She served a two-month term of imprisonment.  After she had served a sentence, the applicant lodged a non-refoulement protection claim.

2.  The Director of Immigration (“the Director”) rejected the applicant’s claim on 31 October 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 4 August 2017.  She then filed a notice of application for leave to apply for judicial review on 7 September 2017 and requested an oral hearing.  The applicant appeared in person on 1 February 2018 having had her legal aid application refused.

3.  The basis of her claim is that if she were to return to Indonesia she would be harmed or even killed by her husband; she was a victim of domestic violence.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only need to summarise it here.

4.  The applicant was married in 2004 and has a daughter.  She came to Hong Kong to work two years after her marriage because of her husband’s violent behaviour.  She suffered three incidents of violence.  The first assault by him was at the end of 2004 when she refused to settle a debt for him; he was drunk at the time and had brought a woman home as well.  He slapped her three times and threw a chair that hit her in the back.  She did report it to the police but was told it was a private family matter and they would not investigate it.

5.  The second assault was in early 2005 when her husband hit her again when she refused to cook for him.  He slapped her twice but did not seek help from the police on this occasion.  In 2006 the applicant was assaulted for the third time when she refused to settle the debt for him.  Her husband grabbed her by the neck and assaulted her with his bare hands for about 10 minutes.  She sustained red marks all over her body but could not afford to see a doctor.  She also found out that her husband had stolen her mother’s title deeds to the house and had sold it unbeknownst to them.  The house was then repossessed by the bank when her husband did not repay the bank.  Her parents and siblings had nowhere to live and had to stay with the applicant’s aunt nearby.  The applicant then trained to come to Hong Kong to be a domestic helper and left Indonesia in 2006 without having any more contact with her husband since then.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles applicable to the four grounds.  The applicant elected to answer questions at the appeal hearing.  The adjudicator set out the applicant’s case and her assessment of her credibility in full in her decision.

8.  The adjudicator found discrepancies in the applicant’s evidence which she asked her to explain.  Her explanations were unsatisfactory, for example, in the appeal she gave evidence that her husband had many loans to repay and not just two as she had previously said at a screening interview with an Immigration officer. Another example was her evidence during the appeal that there were now two houses dishonestly sold by her husband and not one; both her mother’s house and her mother-in-law’s house.  Another discrepancy was whether or not her husband had actually ever threatened to kill her.  There were other discrepancies and contradictions that the adjudicator considered and set out in her decision, leading her to find the applicant was not a genuine claimant.  She found that the applicant had “failed to establish the primary facts of her case”.

9.  The adjudicator did however apply the law to the applicant’s evidence and found that even if she was telling the truth and had suffered injuries that she described she had not established torture as defined in section 37U(1) of the Immigration Ordinance.  Her injuries did not meet the minimum level of severity to be defined as torture.  The adjudicator also found that she was unable to satisfy the requirement to prove she would face a genuine and substantial risk if refouled.

10.  The adjudicator found that when she applied the applicant’s evidence at its highest to all four grounds, the applicant had not made out a case for non-refoulement protection.  Even if her evidence was true, she was not able to establish within the definition of torture under section 37U(1) that severe pain or suffering had been inflicted on her by her husband and that there was a real risk of torture by him if she returned to Indonesia.

11.  The adjudicator found that the applicant’s claim, on her own facts if true, had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found her fear of ill-treatment from an abusive husband did not fall within the definition of persecution, did not come within a Refugee Convention reason and her persecution risk claim failed.  Despite her findings, the adjudicator went on to consider State protection and found that it was available if the applicant was at any risk.  She also went on to consider internal relocation and found that it would be a viable option without undue hardship for the applicant.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  She analysed material, claims and evidence with care.  The applicant’s grounds and complaints are not made out.  I find no substance in the eight grounds of this application.

13.  There are eight grounds in this affirmation and none contain any particulars.  Those include grounds 5, 6, 7 and 8.  As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation.  For ground 7, the adjudicator certainly set out the correct standard of proof in his decision.  There are no particulars here to illustrate where she has applied the incorrect standard.  For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  These grounds have no merits.

14.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  Again particulars have not been given in relation to these grounds.  She had no reason to go into detail considering the reason she dismissed the applicant’s appeal but nonetheless did consider State protection and internal relocation objectively.  These grounds are not arguable.

15.  Ground 3, a failure 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, has no merits.  Consideration of these concepts do not arise unless there is a substantial risk of a real personal chance the applicant will be tortured or ill-treated if refouled.  In this case, the adjudicator made a finding there is no substantial risk or a real personal chance.

16.  In addition, the applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her.  I was satisfied the applicant had the assistance of an interpreter.  There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.  In any event, this application and this affirmation were made in English which casts doubt on this complaint.

17.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial 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