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HCAL1118/2017
[2018] HKCFI 1141
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1118 of 2017
BETWEEN
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TUGIYAH |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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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 an Indonesia national. She is now aged 35 (DOB: 28 December 1982).
2. The Applicant claimed that she would be in danger in Indonesia. Her stepfather Tarsum owed someone money and could not repay. He forced the Applicant to marry the creditor Tukiman.
3. The Applicant claimed her parents divorced in 1996 (when she was about 14). She lived with her mother, who later married Tarsum.
4. In July 2006, the Applicant came to Hong Kong to work as domestic helper. Her employment contract came to an end two years later but she overstayed in Hong Kong.
5. The Applicant said her mother in 2009 told her on the phone that Tarsum had borrowed a lot of money from a loan shark called Tukiman. She asked the Applicant to marry Tukiman so that Tarsum need not repay the loan. The Applicant refused. She was Muslim while Tukiman was Christian. She knew little about that man.
6. From the beginning of 2009, Tukiman frequently called the Applicant and forced her to marry him. He threatened to seize her stepfather’s house. He also said he would hurt and kill her family and even her future partner. The Applicant received such calls until 2011.
7. The Applicant being in Hong Kong could not report the matter to the authorities in Indonesia. She asked her younger sister to report Tukiman’s threats but the sister dared not. Anyway, the Applicant thought the Indonesia authorities would not offer protection because the loan in question was illegal.
8. The Applicant did not think internal relocation was viable as she had no means to do so. Furthermore, she believed Tukiman could find her even if she relocated herself to other parts of Indonesia.
9. In Hong Kong, the Applicant heard from her family that Tukiman was still harassing them and threatened he must marry the Applicant. The Applicant dared not return to Indonesia. She sought non-refoulement protection here.
10. In the ensuing two-tier screening process (“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].
11. On 21 December 2017, the Applicant applied for leave for judicial review.
Chronology of events
12. Things happened in this order: –
| 2006-7-14 |
The Applicant came to Hong Kong to work as domestic helper. |
| 2008-7-14 |
The Applicant’s employment contract came to an end. She stayed in Hong Kong illegally. |
| 2013-8-19 |
The Applicant was arrested by a Labour Inspector for overstaying and taking up unapproved employment. |
| 2013-9-2 |
The Applicant lodged a non-refoulement claim. |
| 2016-8-12 |
The Director interviewed the Applicant. |
| 2016-8-15 |
The Director refused the Applicant's claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk). [“the Director's decision”]. |
| 2017-6-30 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: life risk (BOR2 risk). |
| 2017-7-11 |
The Applicant submitted a letter for the Director’s consideration. |
| 2017-7-25 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director’s further decision”] |
| 2017-10-30 |
The Applicant appeared before the Board for appeal. |
| 2017-12-8 |
The Board 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 Board’s decision”] |
| 2017-12-21 |
The Applicant applied for leave for judicial review. |
Respondents
13. In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as proposed respondents. The Board is the first putative respondent; the Director is the second putative respondent.
14. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
15. In the present case, the Director's decision and further decision were more than three months old by the time the Applicant filed her current application on 21 December 2017. However, the Applicant should not seek judicial review against the Director's decisions before the Board rendered its appeal decision on 8 December 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision and further decision albeit late on 21 December 2017; the application against the Board’s decision was made within time.
Director of Immigration (the Director)
16. In the Director’s decision dated 15 August 2016, the immigration officer considered the level of risk of harm by Tukiman against the Applicant was low. The officer noted that the Applicant had not received threats from Tukiman since 2011. The Applicant only speculated she would be harmed by Tukiman if she returned to Indonesia. The officer also noted that the Applicant had not been inflicted with any ill-treatment. Her fear was not instigated by the state or officials.
17. The officer recognised there were shortcomings of the Indonesia police but there had been reforms and improvements. Women could seek protection and help in Indonesia.
18. The officer considered reasonable state protection and internal relocation were available to the Applicant.
19. The officer did not accept the Applicant faced a genuine and substantial BOR3 risk or persecution risk or torture risk. She refused the Applicant’s non-refoulement claim with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR3 risk).
20. Later, the Director wrote to the Applicant inviting her to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). The Applicant did submit a letter dated 11 July 2017. In that letter, she just re-asserted her allegations. There was no additional information.
21. In the Director’s further decision dated 25 July 2017, the immigration officer considered that the Applicant failed to establish a personal and real risk of her rights under the HKBOR being violated (including right to life under BOR2). She refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground of life risk (BOR2 risk).
TCAB/NCPO (“the Board”)
22. The Applicant appeared in person before the Board on 30 October 2017. She gave evidence. The Applicant repeated her claimed risk and added that she also feared her stepfather would hit her if she refused to marry Tukiman.
23. The Adjudicator set out the facts and the law clearly in her decision dated 8 December 2017. She found the Applicant’s claim largely credible. She accepted the Applicant had fear but the level of risk of harm was low. Furthermore, reasonable state protection was available to her in Indonesia. Reasonable internal relocation was also viable in her case.
24. The Adjudicator did not accept the Applicant would face a genuine and substantial BOR2 risk or BOR3 risk. She found there were no substantial grounds for believing that the Applicant would be subjected to torture risk. There was no question of state acquiescence or state instigation. The Adjudicator also found there was no well-founded persecution risk from the Applicant’s conflict with Tukiman. It was only a private matter between themselves and not on account of race, religion, nationality, membership of a particular social group or political opinion.
25. On 8 December 2017, the Adjudicator refused the Applicant's claim with respect to all the four applicable grounds.
Grounds of judicial review
26. In her affirmation, the Applicant complained the Director and the Adjudicator failed to consider the concept of extended state acquiescence; failed to take into account her psychological strain; misdirected themselves in law; were wrong to disbelieve her and to find reasonable internal relocation was available; rendered unjust decisions.
27. The Applicant also accused the Director failed to conduct sufficient enquiry of relevant country-of-origin information (“COI”); failed to give reasons for his BOR2 risk decision.
Court hearing
28. The Applicant requested a court hearing. In court, she confirmed all the grounds for the current application were in her affirmation dated 21 December 2017 [Folio 2]. She had no elaboration or anything to add.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. 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’.[6]
31. The Applicant complained the Director failed to conduct sufficient enquiry of relevant country-of-origin information (“COI”) and failed to give reasons for his BOR2 risk decision. That is not true. The immigration officer on behalf of the Director had given sufficient and balanced consideration of COI relevant to the Applicant’s claim. [7]
32. The Director's further decision dated 25 July 2017 on BOR2 risk was brief. However, it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 15 August 2016, which contained a detailed analysis of the Applicant's case. The Applicant had no additional facts for the Director's consideration of BOR2 risk, which was only a further issue to be considered by the Director on the basis of the same facts and evidence already analysed carefully in the previous decision dated 15 August 2016. It is sufficient for the Director to state in his further decision dated 25 July 2017 that the Applicant had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 15 August 2016.
33. I have reviewed the decisions of the Director and the Adjudicator under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had considered the Applicant's case carefully and applied the law correctly. They had basis to make their findings, conclusions and decisions which were not Wednesbury unreasonable. They had given due consideration to all the relevant issues including state acquiescence. They were justified to find there was no state acquiescence but reasonable state protection and internal relocation were available to the Applicant.
34. There is no substance in any of the Applicant's complaints.
35. In my judgment, the Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Director and the Adjudicator gave due consideration to the Applicant's claim. They applied the law correctly. The Director and the Adjudicator were entitled to render those findings, conclusions and decisions which were all reasonable. They had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
36. The Applicant’s complaints are not reasonably arguable either against the Director or the Board. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 29th day of May 2018
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(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: |
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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 29/5/2018
TUGIYAH
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 29/5/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4549/16/8/268/I419
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 808/16 & RBCZ 9002597/17 (formerly RBCZ 3000527/14)
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] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] The Director's decision dated 15 August 2016, paras 15-16 and 20-22.
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