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

HCAL211/2018

[2018] HKCFI 2123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 211 of 2018

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 be refused.  

Observations for the Applicant

Background

1.  The Applicant is a national of Indonesia. She is now aged 36 (DOB: 16 December 1981).

2.  The Applicant claimed she would be harmed or killed by a gang leader called Kurmen.

3.  The Applicant said that before coming to Hong Kong in 2003, she had worked in a farm in her village in East Java. Kurmen owned all the land in the village. He only gave a small salary to the farmers who worked for him, including the Applicant.

4.  Before 2003, the Applicant had demanded more food from Kurmen. Kurmen refused. He was annoyed.

5.  In 2003, the Applicant approached Kurmen and asked for more salary and food. Kurmen again refused. He threatened to kill the Applicant if she would rebel against him.

6.  The Applicant was scared. She fled to another village. Someone then took her to an employment agency in Surabaya, where she stayed for 6 months in the boarding house of the agency. The Applicant decided to leave Indonesia to work as domestic helper in Hong Kong.

7.  In December 2003, the Applicant came to Hong Kong to work as domestic helper. Her employment contract was terminated prematurely in August 2005. She was required to leave Hong Kong on or before 5 September 2005. She overstayed. Almost 9 years later, in July 2014 the Applicant surrendered to the Immigration Department and lodged a non-refoulement claim.

8.  The Applicant said she last spoke to her father in Indonesia in December 2014. Her father told her Kurmen was still in power in the village. The Applicant's father also said those villagers who had tried to oppose Kurmen now disappeared.

9.  The Applicant did not make any report to the Indonesia police or authorities. She did not think they would help her.

10.  The Applicant did not think internal relocation was viable. She said she had not been anywhere else in her country. She had no idea where to go.

11.  In the ensuing two‑tier screening process here (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].

12.  On 12 February 2018, the Applicant applied for leave for judicial review.

Timeline

13.  Things happened in this order: –

2003-12-19	The Applicant came to Hong Kong to work as domestic helper. Her employment contract was terminated prematurely in August 2005. She was required to leave Hong Kong on or before 5 September 2005. She overstayed.
2014-7-3	The Applicant surrendered to the Immigration Department and lodged a non-refoulement claim.
2017-4-24	The Director interviewed the Applicant.
2017-4-25	The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). [“the Director's decision”]
2017-11-9	The Applicant appeared before the Board for appeal.
2018-1-19	The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds.
2018-2-12	The Applicant applied for leave for judicial review.

Respondent/Interested party

14.  The Unified Screening Mechanism is a two-tier process.  The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.

15.  In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [5]

16.  In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. 

17.  The Adjudicator did not act in his personal capacity. He represented the Board. In court, the Applicant agreed to change to sue the Board in lieu of the Adjudicator. Thus, the Board is the putative respondent; the Director is the putative interested party.

The Director's decision

18.  In the Director’s decision dated 25 April 2017, the Director did not accept the Applicant faced any real torture risk, persecution risk, BOR3 risk or BOR2 risk. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.

The Board's decision

19.  The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 9 November 2017.

20.  The Adjudicator found the Applicant was an evasive and unconvincing witness. He did not find the Applicant reliable. The Applicant stated in her non-refoulement claim form (“NCF”) that she last spoke to her father on phone in 2014. However, she told the Adjudicator that it was 2004. The Adjudicator twice asked the Applicant to confirm the year. The Applicant maintained it was 2004 until the Adjudicator drew the Applicant's attention to her NCF. Then the Applicant said it was 2014. The Adjudicator also noted that the Applicant gave a number of explanations as to why she had delayed applying for non-refoulement protection for almost 9 years from September 2005 to July 2014. The Adjudicator did not accept her explanations. [6]

21.  The Adjudicator considered internal relocation was available to the Applicant in any event. [7]

22.  The Adjudicator found the Applicant failed to establish any real risk that warranted non-refoulement protection. On 19 January 2018, he refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR 2 risk.[8]

Grounds of judicial review

23.  In her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

24.  The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed a consistent pattern of gross, flagrant or mass violations of human rights in Indonesia; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable decisions.

25.  The Applicant also complained she was given the appeal bundle only a few days before the Board hearing. She did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused. She complained the Adjudicator failed to make appropriate arrangement.

26.  The Applicant further complained the Adjudicator dealt with her appeal including the applicable ground of BOR2 risk, which the Director had not yet screened.

Court hearing

27.  In Form 86, the Applicant requested a hearing.  The hearing took place on 27 June 2018. The Applicant was in person. An Indonesian interpreter provided service in court.

28.  The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. She had nothing to add. She simply said the decisions of the Director and the Adjudicator were wrong. She maintained she could not go back to Indonesia due to risk.

29.  The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.

Discussion

30.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[9]  Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [10].

32.  The Applicant complained the Adjudicator dealt with her appeal including the applicable ground of BOR2 risk, which the Director had not yet screened. She is wrong. The Director had dealt with all the four applicable grounds including BOR2 risk in his single decision dated 25 April 2017.

33.  The Applicant complained there was insufficient legal representation. She had been represented by the Duty Lawyer Service up to the Director's decision dated 25 April 2017.

34.  The Applicant failed to show she had made any effort to re-apply for legal assistance after the Director's decision. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[11] The Applicant also failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

35.  The Applicant complained she received the appeal bundle only a few days before the Board hearing.

36.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[12] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[13], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. 

37.  The Director stated in his letter dated 28 June 2018 that the appeal bundle was served on the Applicant on 7 September 2017. That was almost two months prior to the hearing scheduled for 9 November 2017. Thus, the bundle was served on the Applicant in time. The Applicant failed to show she really needed more time to prepare for her appeal. There was no evidence that she had complained to the Adjudicator or asked for adjournment in the appeal hearing.

38.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

39.  The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated her problem of getting interpretation/translation assistance and handling English documents.

40.  In Point 5 on page 20 of her affirmation, the Applicant said she answered all the questions in the appeal hearing honestly. That would mean the Applicant knew what she was asked of and she answered at will. The Applicant certainly was not confused.

41.  The Applicant failed to demonstrate how a consistent pattern of gross, flagrant or mass violations of human rights (if there was any) in Indonesia was relevant to her case or why it should be necessary to call for psychological or psychiatric reports.

42.  In light of his finding that the Applicant failed to establish any real risk which warranted non-refoulement protection, the Adjudicator need not resort to COI for the consideration of state protection and state acquiescence. There was really no issue of state protection or state acquiescence. The Applicant had never made any report to the Indonesia police or authorities.

43.  The Adjudicator had referred to some COI for the discussion of internal relocation.[14] The Applicant failed to show the information stated by the Adjudicator was incorrect.

44.  There was also no evidence to show the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

45.  There are other vague complaints by the Applicant. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints can stand.

Conclusion

46.  The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the 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

[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.

[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] CACV 54/2018, para 45.

[6] The Board's decision, paras 50-57

[7] Ibid., para 58.

[8] Ibid., paras 60-67.

[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[10] CACV 219/2018 [2018] HKCA 570, para 14(1).

[11] CACV 284/2017 Re Paswan Shibu Lal, para 21.

[12] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.

[13] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.

[14] The Board’s decision, para 66.