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

HCAL 996/2017

[2021] HKCFI 1556

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 996 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 the Applicant being present/absent in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong on the strength of her Indonesian passport on 13 June 2013 and was allowed to remain in Hong Kong as a foreign domestic helper (“FDH”) until 13 June 2015.  The applicant’s employment contract was terminated on 19 August 2013 but she failed to leave Hong Kong within two weeks of that date as required under the terms of her visa.  She overstayed from 3 September 2013.  The applicant did not surrender to the Immigration Department until 22 August 2014 at which time she was seven months pregnant.  She was released the same day.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 12 September 2014.  She gave birth to a son on 28 October 2014 and submitted a NRF claim by way of written representation on his behalf on 24 November 2014.  NRF claim forms on behalf of both the applicant and her son were submitted on 21 September 2017.  He has not been included in this application for judicial review for the reasons given below.

2.  The applicant attended a screening interview on behalf of herself and her son Dewi Aisyah Muhammad Farhan Mughal (“A”), on 4 October 2017.  The Director of Immigration (“the Director”) dismissed their claims on all grounds by Notice of Decision (“the Decision”) on 27 October 2017.

3.  They appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 6 November 2017.  The adjudicator of the TCAB, Ms Jane Curzon Lo (“the Adjudicator”), heard their appeal on 5 September 2018, 29 October 2018 and 7 November 2018.

4.  The first hearing was adjourned as Mughal Muhammad Fiaz attended to say that the applicant had recently given birth (“B”) on 26 August 2018.  This clearly does not refer to A who would by then be 3 years and 11 months’ old.  The applicant appeared at the second hearing but required a further adjournment in order to complete documentation to allow her to return to Pakistan with the father of her children who was also a Form 8 holder.  The applicant unsuccessfully applied to adjourn the third hearing for similar reasons, although the father gave evidence that he did not intend to return to Pakistan.  No other child was added to the claim.  The Adjudicator considered the appeal of the applicant and A on all applicable grounds including BOR 2 and refused the appeal on 3 April 2019.  No NRF claim has been lodged in respect of B.

5.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 December 2017.  At this stage she had not had a hearing before the TCAB and therefore had not received a decision from the TCAB although the F86 mistakenly identified the TCAB as the proposed respondent.  At that stage therefore, there was no decision from which to appeal.  This first F86, dated 1 December 2017, triggered a request by the High Court to the Immigration Department and TCAB, for copies of the relevant decisions.  The Immigration Department provided their Decision of 27 October 2017.  The High Court was presumably waiting for the decision of the TCAB.  The TCAB informed the High Court on 6 November 2018 that a hearing was to take place on 7 November 2018 and the court was eventually provided a copy of the decision but not until 24 May 2019.

6.  At this point the applicant filed a further F86, dated 6 May 2019, but this time indicated the respondent was ‘Immigration’.  This F86 is not stamped and was not actioned and although HCAL 996/2017 was current, it was not placed on file.  On 17 May 2019, the applicant applied to ‘cancel her appeal’ under HCAL 996/2017 which was the subject of an Order of this court on 24 June 2019.  She had, in effect, only withdrawn her application for leave for judicial review of the decision of the non-existent TCAB decision.  Her subsequent F86 dated 6 May 2019, had not been dealt with because it had not reached the file.

7.  On 23 January 2020, the applicant sought to file a further F86, this time appealing the decision of the Immigration Department once more.  It appeared, at first blush, to revive the F86 of 1 December 2017, which had been withdrawn by Order of 24 June 2019.  Not surprisingly, her application was refused by the Master.  On 8 July 2020, the applicant submitted yet another F86 in similar terms but she transposed the date of the TCAB decision with the date of the DOI decision and no one picked up the mistake.  It would appear she had finally properly sought to appeal the decision of the TCAB.  This application was rejected because there was no decision of the DOI dated 3 April 2019.  Finally, on 25 February 2021 the applicant submitted yet another F86 to review the decision of the TCAB dated 3 April 2019 and the errors of both the applicant and this administration were discovered.  The application was considered on the papers at the request of the applicant.  She did not seek to appeal the decision of the TCAB on behalf of A.  The Court will nevertheless consider this leave application as if it has been made by both parties and will take into consideration the situation of B following the recent decisions of the Court of Appeal in Fabio Arlyn Timogan & Others v Evan Ruth Esq, the Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, CACV 32/2020 and Re Jasvir Singh & Others [2021] HKCA 53, CAMP 88/2020.

Background

8.  The applicant is an Indonesian national.  She was born on 11 April 1984, in East Java.  She married an Indonesian national in Indonesia on 1 February 2001 and has two children of that marriage.  She told the Immigration Department that she had divorced her husband in 2009, although subsequent to that she produced documentation to the TCAB to indicate she had divorced him on 23 January 2018.  She was therefore married at the time of her arrival in Hong Kong in 2013 and at the time of giving birth to A.  She also told the DOI that she was married to Mughal Muhammad Fiaz, but when he appeared before the TCAB he maintained they had not yet married.  Before the Immigration Department, the applicant maintained that she feared her Indonesian ‘ex’-husband and that if she returned to Indonesia he would kill her as he was a violent man.  The applicant also maintained that she and her family owed a lot of money to a loan shark referred to as ‘Hamdi’.  He had arranged for her mother and her to be assaulted before 2010.  As a result, the applicant fled to Bali and later obtained employment in Hong Kong.  Between 2010 and 2013 the applicant had been employed as an FDH.  Whilst in Hong Kong she has heard that Hamdi is still looking for her and has threatened to kill her.

The non-refoulement claim

9.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii. 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 (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. 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”).  Under “persecution risk”, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

10.  It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of her claim.  The Director and the Adjudicator must then assess the level of harm the applicant says she fears for both herself and her child individually.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that she is the subject of such risk.  Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision and further decision of the Director

11.  The applicant variously sought to review the Decisions of both the Director and the Adjudicator.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with[1].

Decision of the Adjudicator

12.  The applicant had the opportunity to attend an oral hearing which treated the appeal as a rehearing. The Adjudicator analysed the applicant’s claim on all applicable grounds.  She allowed the applicant a considerable amount of leeway in attending hearings and produced a decision which runs to 25 pages, which covered the evidence before the Director and before the Appeal Board.  There are some significant discrepancies between the two, including admissions that her original claim had been overstated.  Indeed, the adjudicator said at paragraph 16: “I find the following aspects of her account to lack in detail, inconsistent with her previous statements, implausible and/or defy logic”.  Nevertheless, the Adjudicator considered all that she said, correctly set out the law and key legal principles including the burden and standard of proof and was consistently fair to the applicant as can be seen at paragraphs 16-17 in her analysis.

Leave to apply for judicial review

13.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB.  They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to her non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location.  The role of this court in judicial review is not to re-assess the non-refoulement claim.  This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality.  This being an application to apply for leave to judicially review the Decision of the Adjudicator of the Torture Claims Appeal Board.  It is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by that body when dealing with her application in order to obtain leave to judicially review it.

Grounds of review

14.  There were no grounds of review.  The applicant seeks a re-hearing of her appeal.  She has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave and I have included in that perusal any difference there may be between the position of the applicant and the position of A and B.

Conclusion

15.  Despite the fact that the applicant did not submit any grounds of review, due to the seriousness of the issues at hand, I have considered the papers and grounds carefully as they pertain to children of tender years as well as to the applicant.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable[2]. There is nothing before this Court which indicates that the children are at any claim risk if they were to be taken to Indonesia by their mother.  

16.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore 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