RE SULIS TIANAWATI

CACV 24/2018

[2018] HKCA 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 24 OF 2018

(ON APPEAL FROM HCAL NO 359 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 26 January 2018 refusing leave to the applicant to apply for judicial review. The applicant is an Indonesian national. She arrived in Hong Kong on 30 March 2013 to work as a foreign domestic helper. Her contract was terminated on 26 May 2013 but she did not depart within 2 weeks. Since 10 June 2013 she had been overstaying. On 9 November 2013 she was arrested by the police. She was sentenced to a suspended term of imprisonment for an immigration offence on 19 November 2013 and 2 days later she lodged a non-refoulement protection claim.

2.  The claims were based on the alleged threat to her life from her family.  According to the applicant, in around 2013 her mother borrowed money from a money lender called S.  Her mother asked her for money to repay the loan.  She remitted some money but not enough to fully repay the loan.  Her family told her that S demanded that she marry him.  But as she was already in Hong Kong, that did not come to anything.  She formed a relationship with a man in Hong Kong in December 2014 and it lasted for three months.  She became pregnant and in December 2015 she gave birth to a daughter out of wedlock.  When her family learnt of that they disowned her and threatened to kill the applicant for bringing shame to the family if she returned to Indonesia.

3.  The applicant also claimed that S made threats to her family when they failed to repay the loan.  However, no actual harm had been done to her family.    

4.  The Director decided against the claim on 12 August 2016.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a Further Decision of 24 March 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against her.

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 24 March 2017, the Board dismissed the appeals on 11 May 2017 (“the Board’s Decision”).

6.  The intended judicial review was in respect of the Board’s Decision.  The Form 86 filed by the applicant on 5 July 2017 did not state any grounds.

7.  In her affirmation of 5 July 2017, she relied on the following grounds:

(1) The Board failed to take into account the concept of extended state acquiescence in TK v Jenkins;

(2) The Board failed to conduct independent inquiries into relevant Country of Origin Information (“COI”);

8.  After reviewing the materials carefully, the judge refused to grant leave.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Board, she gave the following reasons for refusing leave at [11] to [17] of the CALL-1 Form of 26 January 2018:

“ 11. The applicant has sought to judicial review both the Director’s decision as well as the adjudicator’s decision. This is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing/rehearing/appeal. There is no room for judicial review of the Director’s decision. I have considered the grounds of this application against the decision of the TCAB only.

12. I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in court. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken by him are not made out. I find no substance in the grounds of this application.

13. The first ground alleges a failure to take into account the concept of extended state acquiescence. The applicant did not rely on the extended concept of state acquiescence. This is not a case where state authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. There is no merit in this ground.

14. The second ground alleges procedural impropriety; for example, a failure to sufficiently enquire into relevant country of origin information and conduct a critical analysis. The adjudicator rejected the applicant’s evidence in its entirety and gave full and cogent reasons why. Having rejected the applicant’s evidence and [her] claim on credibility, there was no need for the adjudicator to sufficiently research and enquire into country of origin conditions. He made reference to certain matters that required some research but suffice to say what he did refer to was objective and relevant. There were other allegations in this ground but no particulars were provided. All allegations can be answered with the same response and that is why the adjudicator rejected the claim on credibility; he did not find the applicant a genuine claimant. There is no substance in ground 2.

15. The applicant had nothing to add to her affirmation except to say she was very frightened to return to Indonesia. She added that she wanted to contact the father of her daughter in order for him to pay maintenance towards their daughter for her future.

16. In conclusion, 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.

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

9.  In the notice of appeal of 2 February 2018, the applicant argued that the Board failed to sufficiently consider COI.  She also argued that the Board failed to give adequate reasons for the conclusion that the applicant will be safe were she to go back to Indonesia.

10.  The applicant agreed by a letter of 2 February 2018 that the appeal can be heard by two judges.

11.  On 6 March 2018, the applicant lodged a set of skeleton submissions repeating the grounds in the Form 86 and the Notice of Appeal.   

12.  We heard the appeal on 15 May 2018.

13.  Having considered the submissions of the applicant in light of the materials before us, we agree with the judge’s observations.

14.  In respect of Ground 1 of the applicant’s affirmation dated 5 July 2017, the applicant confirmed that she had “no personal experience of the police denying protection to her”.  On her own evidence, no report had been made to the state authority.  There is simply no scope for finding state acquiescence.  This ground has no merit.

15.  In respect of Ground 2, the Board had considered the relevant COI, see §§50-51 of the Board’s Decision.  The Board noted that the COI showed that there were government and community organizations in Indonesia providing support to single mothers from which the applicant could get help.  The Board was not satisfied that any harm the applicant may encounter was sufficiently serious to constitute persecution or torture or CIDTP (§65 of the Board’s Decision).  The Board gave sufficient reasons for arriving at this conclusion.

16.  Lastly, it should be noted that the Board found that the applicant was not credible.  The Board did not believe her family had disowned her, let alone made threats to her life (§65).  The applicant did not have any basis to challenge these findings of fact, nor do we see any reason why such a challenge could succeed.  In such circumstances, there is simply no substantial ground for believing that the applicant would face a real risk of being subject to ill-treatment of a kind meeting the high threshold as explained in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174]. 

17.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

18.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.