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HCAL 2662/2018
[2021] HKCFI 2003
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2662 of 2018
BETWEEN
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Yuni Agustin Ningsih |
1st Applicant |
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Bhagat Michelle Vania |
2nd Applicant |
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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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicants:
Introduction
1. This is the Applicants’ application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 5 November 2018 (the “Decision”). The 1st Applicant gave birth to her daughter on 16 October 2017 in Hong Kong. At the hearing, leave was granted to join the daughter as the 2nd Applicant and the original applicant was called the 1st Applicant.
2. The 1st Applicant is an Indonesian national. The 2nd Applicant is the daughter of the 1st Applicant and is entitled to Indonesian citizenship. The 1st Applicant entered Hong Kong lawfully to take up employment as a foreign domestic helper on 23 May 2013. Her contract of employment was terminated on 20 March 2016 and she became an over-stayer since 4 April 2016. While over-staying in Hong Kong, she married a Hindu Indian and gave birth to the 2nd Applicant.
3. In due course, the 1st and 2nd Applicants’ non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By a Notice of Decision dated 13 April 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected their claims. Their appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 5 November 2018.
The Applicants’ case
4. The following account of the Applicants’ case is mainly based on the information in their non-refoulement claim forms which were prepared by them with assistance of the Duty Lawyer Service.
5. The 1st Applicant borrowed 120 million rupiah from a loan shark for medical treatment for her mother in 2012. In 2013, she came to Hong Kong to work as a foreign domestic helper believing that she could pay off the loan with her salary. After paying four instalments, she stopped because she had to help her friend who was in need of money. As her friend failed to repay her, she could not repay the loan shark. Then she received numerous threatening calls from the loan shark.
6. In 2015, the 1st Applicant returned to Indonesia for holiday. Though she tried to hide herself from the loan shark, she was spotted by him. Then, she hid herself in the home of her friend’s grandmother for eight days. After that, she returned to work in Hong Kong.
7. When her contract of employment was prematurely terminated in March 2016, the 1st Applicant dared not return to Indonesia due to her fear for the loan shark. She was told by her mother that the loan shark had been looking for her and harassing the family. At around the same time, she came to know her Hindu boyfriend and they married in a Hindu temple. Then she gave birth to the 2nd Applicant.
8. The 1st Applicant said that the 2nd Applicant would be discriminated against in Indonesia and her family members would not accept her marriage to a Hindu husband or her daughter’s existence. She said her father would hit her and she could not return to her home.
The finding of the Board
9. The Board considered the 1st Applicant’s evidence was vague and lacking in details. The Board was concerned about her delay in making her claim for protection and about the lack of corroboration by way of documentation. Based on the Country of Origin Information (“COI”), the Board found that it unlikely that the 2nd Applicant would face any real risk of harm as an illegitimate child. It found the 1st Applicant was not a credible witness.
10. Because of its assessment of the 1st Applicant’s credibility and the credibility of aspects of their claims, the Board did not accept the 1st Applicant’s claim that she owed money to a loan shark in Indonesia and her feared harm from the loan shark if returned to Indonesia. Also, the Board did not accept the Applicants’ claims of feared harm from her father or members of her family or the Indonesian society. On these findings, there is no factual basis to support the Applicants’ claims for non-refoulement protection on any of the four applicable grounds under the USM.
11. Specifically, in order to succeed on the BOR 3 Risk ground, the Applicants must establish (1) that there are substantial grounds for believing that if removed from Hong Kong, they would face torture, cruelty, inhuman treatment and punishment to a minimum level of severity; and (2) they will face a genuine and substantial risk of being subjected to such ill-treatment. For the above reasons, the Board was not satisfied that the Applicants have discharged the burden of proving these requirements to the very high threshold required.
12. The Persecution Risk ground requires that the harm feared be motivated by or more of the reasons under the 1951 Convention on the Status of Refugees, namely, race, religion, nationality, membership of a particular social group or political opinion, and the Applicants must be unable, or unwilling because of their fear to avail themselves of the protection of their country. The Board considered the 1st Applicant’s feared harm is based on inter-racial relationship with a child of mixed ethnic extraction; while the 2nd Applicant’s fear harm is based on her mixed ethnic extraction. However, having regard to the COI, the Board did not accept that the Applicants’ have a well-founded fear of persecution in Indonesia and their claim for non-refoulement protection on Persecution Risk ground is not substantiated.
13. In respect of the BOR 2 Risk ground, the Board was not satisfied that there are substantial or strong ground to believe that the Applicants will suffer the death penalty, arbitrary deprivation of their lives in any of the claimed circumstances or situations or for any other reason. The evidence and information does not indicate or suggest that the humanitarian conditions in Indonesia are so bad as to render refoulement a violation of the Applicants’ right to life. The Board found that there are no grounds to believe that the Applicants face a real risk of being arbitrarily deprived of their lives and their claims for non-refoulemnet protection based on BOR 2 Risk ground is not substantiated.
14. In respect of the Torture Risk ground, the Board was not satisfied that the harm involved meet the definition of torture in that it would not be inflicted by or at the instigation of a public official or person acting in an official capacity or with his consent or acquiescence.
15. At the hearing, the 1st Applicant agreed with the Court that her feared harm coming from her father was no more than scolding and hitting from him which could not attain the minimum degree of severity. She confirmed that there was no threat by the father or other members of the family to kill her, and her feared harm came only from the loan shark.
Grounds for judicial review
16. The Applicants advanced the following four grounds of appeal in their notice of application for leave to apply for judicial review (Form 86):
(1) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;
(2) the Board acted in a procedurally unfair manner in dealing with the appeal;
(3) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and
(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.
17. These grounds were very familiar to the Court. The Court had seen these grounds many times in this kind of applications. Obviously, they were cloned from other applications. The 1st Applicant was asked to explain or elaborate on the grounds. She said she did not know what they were and did not actually agree with their contents.
Ground (1) – Unlawful exercise of discretion
18. Under this ground, she accused the Board of having unlawfully fettered its discretion by refusing their appeal on the grounds that she did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the Applicants did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss their appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.
Ground (2) – Procedural unfairness
19. The basis of the complaint about procedural unfairness as revealed in the Form 86 is that the majority of the documents in the appeal bundle used before the Board were in English, the 1st Applicant was served the bundle six days before the hearing and did not have sufficient time to prepare for the hearing due to her limited skills in English and she being unrepresented.
20. In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the Applicants were prejudiced due to lack of legal representation before the Board.
21. Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Re Karamjit Singh[12], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the 1st Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, she has to live with or cope with her language disability. She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit. She has to find assistance herself from among her friends and ethnic community. Indeed, the Applicants were able to file an adequately well written affirmation in English themselves.
22. The Applicants had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director. They also had the services of a qualified interpreter at the oral hearing before the Board. Though the appeal bundle is in English and served on them six days before the hearing, it is basically made up of their NCF, the record of the screening interview and the decision of the Director in the Notice, including the COI. They knew what is contained in the bundle. The Notice of the Director was issued to them on 13 April 2018. It was not until 19 September 2018 that the oral hearing was held. The Notice is in English and, unfortunately, no translation was provided. The Applicants cannot expect these documents to be fully translated for them. They had in between the issue of the Notice and the oral hearing six to five months to seek assistance from among their own circle. Indeed, they had access to interpretation services as reflected in the affirmation and Form 86 filed in connection with this application which were very well written in English. Also, they could have sought assistance from the interpreter at the oral hearing before the Board.
23. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. The Applicants’ complaint about lack of legal and language assistance is over-exaggerated.
24. Part of their complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and was outdated, which resulted in the Board making groundless speculation that it was safe for the Applicants to return to Indonesia. The Board had discussed the information with the Applicants. The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2016 - Indonesia published by the United States Department of State; International Religious Freedom Report for 2016 published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Country Origin Information of Indonesia published by the Australian Government Refugee Review Tribunal (based on 18 February 2010); Ministry of Women’s Empowerment and Child Protection introduced by Asia-Pacific Economic Cooperation; and other news reports and articles. Other than a bald assertion of unreliability and hearsay, the Applicants provided no particulars as to what are untrue, not to mention their failure to provide any publication contradicting these COI.
25. The Court considered the complaint about procedural unfairness is absolutely groundless.
Ground (3) – unreasonableness and irrationality
26. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[13].
27. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the 1st Applicant failed to discharge her burden of proving their fears and risks. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. There were no such elements in the Decision. The Decision was utterly without fault.
Ground (4) – Breach of greater care and duty owed to a self-represented claimant
28. The Applicants did not particularize the duty and the breach. In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicants.
Conclusion
29. For the above reasons, the Applicants’ claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Accordingly, leave to apply for judicial review was refused.
Dated the 7th day of July 2021
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(Sammi Wu) |
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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 Applicants
on 8 July 2021
Yuni Agustin Ningsih
Bhagat Michelle Vania
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 7 July 2021
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11344/18/4/354/I1304
USM 11345/18/4/355/I1305
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 719/18 (Formerly RBCZ 12608/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] cacv 2/2018, (unreported) 23 March 2018
[6] [2018] HKCA 14
[7] [2018] HKCA 15
[8] [2018] HKCA 17
[9] [2018] HKCA 37
[10] (2004) 7 HKCFAR 187
[11] HCAL 51 of 2007, (unreported) 5 December 2008
[12] CACV 78/2018; [2018] HKCA 460
[13] [2018] HKCA 524 at para 14(1)
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