|
HCAL520/2018
[2019] HKCFI 26
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 520 of 2018
BETWEEN
|
Ika-Kristian |
Applicant |
|
and |
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
|
Director of Immigration |
2nd Putative Respondent |
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 Josiah Lam:
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 33 (DOB: 31 August 1985).
2. The Applicant claimed she would be harmed or killed by her husband and a loan shark called Toni, who demanded her to settle her husband’s debt.
3. From late 2003 to early 2004 and from March 2004 to June 2006, the Applicant worked as domestic helper in Singapore and Malaysia. She returned to Indonesia and got married in September 2006. He husband was a drunkard and gambler. He would abuse the Applicant. The Applicant experienced two serious assaults in May and September 2007 respectively.
4. The Applicant did not seek assistance from the Indonesia police because she was afraid to disclose her case and also because the police were far away.
5. In mid-2009, the Applicant’s husband misled her into signing documents to borrow 100 million rupiahs from a loan shark called Toni.
6. In early 2010, Toni approached the Applicant and demanded the Applicant to pay 15 million rupiahs as interest by the end of the month. He threatened to report her to the police if she failed to pay.
7. The Applicant could not pay. Toni and his men came regularly and made their demand.
8. On 10 October 2010, the Applicant came to Hong Kong to work as domestic helper. She left the territory later and last entered Hong Kong on 14 June 2013 to resume working as domestic helper.
9. In early June 2015, while still in Hong Kong the Applicant received a text message asking her to call back. She did and found out it was Toni who demanded her to pay back the loan. He threatened to kill her if she did not pay. The Applicant said she feared being tracked down by her husband and Toni. She thus ran away from her employer’s house on 5 June 2015. Eight months later, in February 2016, the Applicant was arrested by the police for overstaying. She lodged a non-refoulement claim subsequently.
10. The Applicant claimed she learnt that her husband had forced her mother to repay the debt to Toni. Due to her husband’s threats, the Applicant's mother and brothers moved away and lost contact with the Applicant. The Applicant said she had no family support in Indonesia now. She feared her husband and Toni would track her down in the country. The Applicant did not believe the Indonesia police would help her, so she had never sought help from them. She said she had no idea where to look for assistance in Indonesia.
11. In the ensuing two-tier screening process here, 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
12. On 29 March 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2010-10-10 |
The Applicant came to Hong Kong to work as domestic helper. |
| 2013-6-14 |
The Applicant last entered Hong Kong to resume working as domestic helper. |
| 2015-6-5 |
The Applicant ran away from her employer. Her employment contract was thus terminated. She did not leave Hong Kong accordingly. |
| 2016-2-18 |
The Applicant was arrested by the police. |
| Feb-Apr 2016 |
The Applicant raised a non-refoulement claim |
| 2016-10-27 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”] |
| 2018-1-8 |
The Applicant appeared before the Board for appeal. |
| 2018-3-23 |
The Adjudicator refused Applicant’s appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-3-29 |
The Applicant applied for leave for judicial review. |
Respondents
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 Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
16. 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] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
17. In his decision dated 27 October 2016, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 8 January 2018.
19. The Adjudicator found a number of suspicious allegations, inconsistencies and contradictions in the Applicant's claim. He did not find the Applicant reliable or her claim credible.[6] The Adjudicator was only prepared to accept the Applicant had been hurt by her husband and she needed to repay some loan. However, he did not accept the main thrust of the Applicant's claim including the alleged threats from Toni. He did not accept the Applicant was a genuine non-refoulement protection seeker.[7]
20. Even assuming the Applicant’s allegations were true, the Adjudicator considered any risk of harm against the Applicant from her husband and Toni was low. The husband had not caused the Applicant serious injuries. Toni had not even harmed her. The Adjudicator did not accept Toni and his men had any real intention to harm or kill the Applicant. The Adjudicator considered the Applicant had not been ill-treated by her alleged enemies to a minimum level of severity. He found the Applicant's complained situation had nothing to do with state consent or acquiescence. It was a private loan dispute and not related to any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator considered reasonable state protection[8] and internal relocation[9] were available to the Applicant in any event.
21. On 23 March 2018, the Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
22. In her affirmation, the Applicant complained she did not have legal representation after the Director's decision. She also complained she did not have language assistance.
23. The Applicant complained the Director on how he considered country-of-origin information ("COI"). As said in paragraph 16 above, I would deal with the current application in relation to the Board's decision only since the Director's decision had already gone on appeal to the Board as rehearing.
Court hearing
24. The hearing took place on 17 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
25. The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
26. 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
27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
28. 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’.[10] 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.” [11]
29. The Applicant complained she did not have legal representation after the Director's decision 27 October 2016.
30. 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.[12]
31. The Applicant complained she had to face the Adjudicator alone and there was no one to stand up for her should there be any unfairness. However, she failed to point out there was any unfairness or irregularities in the Board hearing. The Applicant could not show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. 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 at all material times. Furthermore, she was assisted by qualified interpreters while she was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
33. 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 was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
34. 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 judicial review.
Dated 8th day of January 2019
|
(Alan Ngan)
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:
|
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 8/1/2019
Ika-Kristian
Applicant’s ref. no:
Nil.
|
|
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 8/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 5063/16/11/2/I492
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1894/16 (formerly RBCZ 11551/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
|
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, para 32.
[7] Ibid., para 42.
[8] Ibid., para 62.
[9] Ibid., para 63.
[10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[11] CACV 219/2018 [2018] HKCA 570, para 14(1).
[12] CACV 284/2017 Re Paswan Shibu Lal, para 21.
|