HCAL287/2018
[2019] HKCFI 2056
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 287 of 2018
BETWEEN
Elisa-Adya alias Adya Elisa alias Elisa Adya
Applicant
and
Torture Claims Appeal Board /
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 41 (DOB: 7 March 1978).
2. The Applicant claimed she would be harmed or killed by the boyfriend of her foster mother (“her uncle”) and her estranged husband (“Hengky”)
3. The Applicant said her mother died in 1988. She was then looked after by a female neighbour (“her foster mother”).
4. In 1991, a man moved in to live with the Applicant's foster mother. The man became her uncle. One day, her uncle attempted to rape her. The Applicant's foster mother returned home at that time. The uncle falsely accused the Applicant of seducing him. He warned the Applicant not to reveal the truth or he would kill her. The Applicant was scared. She did not report the matter to the police.
5. The Applicant was asked to leave the house. She went to live with a friend and later returned to her home village. The Applicant did not meet her uncle again. She went to work as waitress in Surabaya in 1998.
6. In 1999, the Applicant met Hengky. They got married in 2001. The Applicant gave birth to a son in 2005.
7. Hengky became an alcoholic and moody. On one occasion, he hurt the Applicant. The Applicant did not make any report to police but a neighbour complained to the police. The Applicant did not press for any charge. The police just issued a warning letter to Hengky.
8. Between 2005 and 2008, the Applicant suffered minor attacks from Hengky.
9. In 2008, the Applicant went to Singapore to work as domestic helper. She returned to Indonesia in 2009. She did not go home or contact her family members.
10. On 7 May 2010, the Applicant came to Hong Kong to work as domestic helper. Her employment contract was terminated prematurely in October 2010. The Applicant then made side trips to China and last entered Hong Kong on 8 October 2012 to work as domestic helper again. However, she did not report duty to the new employer and began overstaying in Hong Kong from 23 October 2012. The Applicant was arrested by the police almost seven months later on 20 May 2013. She was imprisoned and released on 11 July 2013. The Applicant lodged a non-refoulement claim on 18 March 2014.
11. The Applicant had no contact with her uncle, Hengky or even her son after coming to Hong Kong.
12. 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 rejected 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] .
13. On 23 February 2018, 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. I shall deal with her application in relation to the Board's decision only.
The Director's decision
17. In his decision dated 22 February 2017, 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 rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed her on 15 January 2018.
19. The Adjudicator noted the Applicant had not seen her uncle since 1991. He was not satisfied the uncle would pose any risk to the Applicant now.
20. The Adjudicator considered that the same applied to Hengky, who the Applicant had not met since 2008.
21. The Adjudicator further noted the Applicant first entered Hong Kong on 7 May 2010 but she applied for non-refoulement protection only on 18 March 2014 after she had been arrested for overstaying. The Adjudicator did not accept the Applicant's explanation that she did not know how to apply for protection earlier. He found the Applicant came to Hong Kong for work rather than to seek non-refoulement protection.
22. On the Applicant's own account of events, the Adjudicator found there was no evidence of state instigation, consent or acquiescence. The Applicant had not suffered any ill-treatment to a minimum level of severity.
23. The Adjudicator considered reasonable state protection and internal relocation were available to the Applicant in any event.
24. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 30 January 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
25. The Applicant made complaints against the Director and the Adjudicator. As said in paragraph 16 above, I shall deal with her application in relation to the Board's decision only since the Director's decision had gone on appeal to the Board as rehearing.
26. The Applicant complained the Adjudicator failed to properly consider her fear and failed to clarify with her matters relevant to her claim and her credibility.
27. The Applicant said the Adjudicator failed to consider her BOR3 risk and had no sufficient basis to conclude there was no such risk in her case. She also disagreed to the Adjudicator’s finding that she came to Hong Kong to work rather than to seek asylum.
Court hearing
28. The hearing took place on 23 August 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
29. The Applicant said all the grounds of judicial review were in the documents. She had nothing to add.
30. 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
31. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
32. 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] 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.” [7]
33. The Applicant complained the Adjudicator failed to properly consider her fear and failed to clarify with her matters relevant to her claim and her credibility.
34. The Adjudicator’s report clearly showed the Adjudicator fully understood the Applicant’s case. He 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.
35. The Adjudicator properly considered the Applicant's claim of fear of her uncle and Hengky. He had proper basis to find those two men would not pose any risk to the Applicant now since she had not seen the two for many years.
36. The Applicant said the Adjudicator failed to consider her BOR3 risk. That is not correct. The Adjudicator did consider such applicable ground as well as the other three applicable grounds. He was not persuaded the Applicant would be subjected to any BOR3 risk if she returned to Indonesia. The Adjudicator had sufficient basis to conclude there was no BOR3 risk in the Applicant's case.
37. The Adjudicator noted the delay of the Applicant's application of non-refoulement protection. He did not accept the Applicant's explanation that she did not know how to apply for protection earlier. He found the Applicant came to Hong Kong for work rather than for non-refoulement protection. The Adjudicator’s conclusion was not Wednesbury unreasonable.
38. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding 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. 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.
Conclusion
39. The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave to apply for judicial review.
Dated the 21st day of August 2019
(Henry Ng)
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 :
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);
Sent to the Applicant on 21/8/2019
Elisa-Adya alias Adya Elisa alias Elisa Adya
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 21/8/2019
Torture Claims Appeal Board/ st Putative Respondent’s ref. no.:Director of Immigration nd Putative Respondent’s ref. no.: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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570 , para 14(1).