MESTIYAH v. CHOW SIU-HUNG, ESQ.

HCAL178/2017
[2018] HKCFI 48

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 178 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 refused.

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

1.  The applicant is an Indonesian national who first arrived in Hong Kong to work as a domestic helper in 2004.  She last arrived on 29 June 2012 and was permitted to remain until 29 June 2014 or two weeks after termination of contract, whichever was earlier.  On 17 September 2013, the applicant was arrested by the police and later she was convicted for the offence of breach of condition of stay by taking unapproved employment and sentenced to two months’ imprisonment.  Her employment contract was terminated. She lodged a non-refoulement protection claim on 1 November 2013.

2.  The Director of Immigration (“the Director”) rejected her claim on 17 July 2015 and 31 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal/petition on 31 March 2017.  She filed a notice of application for leave to apply for judicial review on 4 May 2017 and requested an oral hearing which was set down for 24 October 2017.

3.  A notice of hearing dated 24 August 2017 was sent by ordinary and registered post to the applicant’s address supplied by the applicant in her application and affirmation.  The letter sent by ordinary post was returned by the post office and the reason stated was “addressee unknown”.  The letter sent by registered post was not returned.  The applicant was absent on the day of the hearing.  I have to assume the address was correct, having been supplied by the applicant.  I assume she received the registered post if it was not returned.  As the applicant was absent, I considered her application on the papers.

4.  The basis of the applicant’s claim was that if she were to return to Indonesia she would be harmed or killed by her husband and/or his creditor for her failure to repay his debt to his creditor.  Both the Director and the adjudicator of the TCAB have set out the applicant’s evidence and her claim in full in their decisions and therefore I only intend to summarise it here.

5.  The applicant was born in 1981 to a farming family and received eight years of education before marrying in 1999.  She gave birth to two children in 2005 and 2007.  Between 1999 and 2013 she worked as a foreign domestic helper in Malaysia and in Hong Kong.  Her husband borrowed 15 million rupiahs from a loan shark called Andi in June 2004; the repayment period was to be two years and monthly interest 5% per month.  The monthly instalment payable was 1,007,000 rupiahs.  He took out the loan to start a business but it failed and now the loan shark was threatening to kill their entire family if they did not repay it.  It is not clear if the threats she heard were made to her or hearsay.

6.  The applicant started to remit 2 million rupiahs to her husband every month from August 2004 but stopped in February 2005 when she lost her job.  In 2006, she lost contact with her husband when his mobile phone no longer worked.  In 2009, she returned to Indonesia for a month’s holiday and during that period did not meet either her husband or the loan shark.  She does not know of her husband’s whereabouts. 　She had never met the loan shark personally nor spoken to him.  Her children lived with her parents and had never come to harm.  Despite the threats from the loan shark to kill her entire family, she had never sought assistance from the police or other authorities in Indonesia.  Her family had never made any report either.

7.  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”).

8.  The adjudicator treated the appeal/petition as a rehearing.  An oral hearing was conducted and an interpreter arranged to assist the applicant.  She elected to answer the adjudicator’s questions.  In his decision, the adjudicator set out the law and key legal principles for all four applicable grounds.  He considered the standard of proof and burden of proof.

9.  The adjudicator then compared the applicant’s statements, their consistency with one another and the many answers she provided during the course of the hearing.  He reached the conclusion that nothing the applicant said or had presented in evidence could be relied upon and that she was not a witness of truth.  Her evidence, in material particulars, was unreliable and unbelievable.  He did not believe she told the truth to the Immigration Department nor was he willing to attach any credence to any of her evidence given during the appeal hearing.  He gave full reasons for reaching this conclusion in his decision. The adjudicator concluded the applicant was not a genuine claimant and for that reason he rejected the applicant’s claim on all applicable grounds.

10.  The adjudicator went on to find that even if he believed her and relied on her evidence, he would still conclude the applicant had failed to establish she would face a real risk of persecution, a real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of his right to life under Article 2 of HKBORO and a real risk of torture as defined in section 37U (1) of the Immigration Ordinance if she were refouled to Indonesia.  He went on to set out his reasons why he would have rejected her claim. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.  I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  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 are not made out.  I find no substance in the grounds of this application.

12.  There are eight grounds in this affirmation and most contain no particulars or explanation, those include grounds 5, 6, 7 and 8.  As an example, ground 6 complains of a failure to call for psychological and psychiatric evaluations when this was not ever raised as an issue in the applicant’s claim.  As another example, 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.

13.  In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State had exercised due diligence.  Since the adjudicator did not find the applicant credible, he could reject her claim on that basis alone and not need to consider COI material and whether State protection existed.  However, he went further and found even if her evidence was true, on the COI material he did research, State protection was available.  Clearly the material researched was up-to-date and objective. There was no evidence of passive or extended acquiescence so there was no need to question whether the State had exercised due diligence.  These grounds are not arguable.

14.  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.  The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant.  He had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Indonesia under such circumstances.

15.  The applicant complains she was not given sufficient time to prepare for his 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 and had the procedure of the hearing explained to her.  She made an election to give evidence.  There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the appeal.

16.  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.

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