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HCAL 1001/2017
[2018] HKCFI 1596
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1001 of 2017
BETWEEN
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Siti Munawaroh |
Applicant |
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and |
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Allan J. Wyeth, Esq.
Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 40-year-old national of Indonesia who last arrived in Hong Kong on 3 August 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 25 September 2014 or within two weeks of its early termination, but when her contract was prematurely terminated on 1 October 2013, she did not depart within two weeks as stipulated and instead overstayed until 29 October 2013 when she was arrested by the police. After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a money-lender for failing to repay her loan. She has since been released on recognizance pending the determination of her claim.
2. The applicant was born and raised in Kendal Village, Kendal Sub-District, Ngawi Regency, East Java province, Indonesia where her widowed mother and her siblings still live. After leaving school the applicant worked as a domestic helper in Indonesia and married her husband in 1996. Thereafter she went to work as a foreign domestic helper first in Malaysia and later in Hong Kong.
3. In 2000 as her husband needed money to sustain his coffee bean business, he asked the applicant to borrow 300 million Indonesian rupiahs from a money-lender repayable by monthly instalment at the interest rate of 15%. After she had gone to work in Malaysia the applicant would remit money to her husband for the monthly repayment until 2004 when she returned to Indonesia and found her husband disappeared without a trace, and when the money-lender subsequently came to demand for repayment, she asked that she be given more time so that she could go back to work to earn money to repay the loan, and so in 2006 she came to work in Hong Kong and resumed her monthly loan repayments.
4. However, in 2011 when she needed to pay for her mother’s medical treatment, she ceased making her loan repayment, and when the money-lender started making threatening calls to her and also sent men with machetes to her home in Indonesia to threaten her parents, the applicant decided that it would not be safe for her to return to Indonesia and so she overstayed in Hong Kong and subsequently lodged her non-refoulement claim, for which she completed her Non-refoulement Claim Form (“NCF”) on 2 April 2015 with legal representation from the Duty Lawyer Service.
5. By a Notice of Decision dated 12 June 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
6. In his decision the Director found no indication that the money-lender intended to kill the applicant, that it was her responsibility to repay her loan, that in any event it was a private monetary dispute that state and police protection would be available if resorted to, and that reasonable internal relocation alternatives are available to the applicant in Indonesia with a large population of 253 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move safely to other areas away from her home district such as Jakarta where it would be difficult if not impossible for the money-lender to locate her.
7. By a Notice of Further Decision dated 24 April 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
8. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, for which she filed her appeal on 23 June 2015, and for which she attended an oral hearing on 28 September 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board. On 24 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.
9. In its decision the Board found contradictions in the applicant’s accounts of her claim, that there was no evidence of any direct threats from the money-lender, that her fear of harms from the money-lender is essentially based on hearsay, and concluded that she was not a truthful witness and rejected her non-refoulement claim on all applicable grounds.
10. On 4 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:
(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;
(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;
(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;
(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Indonesia and misdirected himself as to the extended meaning of state protection;
(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;
(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;
(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and
(8) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.
11. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.
12. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and mother documents all of which were in English and thereby given insufficient time to prepare for her appeal.
13. Even if it is true that the hearing bundle indeed came to her late as alleged, and the applicant never provided any proof such as the date of the covering letter which accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at the oral hearing before the Board she never raised any issue to the adjudicator about the hearing bundle or requested for further time to enable her to properly prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before her appeal before the Board.
14. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.
Dated the 24th day of August 2018.
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(NG Ka-wing)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 24 August 2018
Siti Munawaroh
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 24 August 2018
Allan J. Wyeth, Esq.
Torture Claims Appeal Board/
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1768/15/6/154/I120
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001286/17 (formerly RBCZ 842/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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