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

HCAL591/2017

[2018] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 591 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indonesian national who last arrived in Hong Kong to work as a domestic helper on 27 May 2013 and was permitted to remain for two years or two weeks after termination of her employment contract, whichever was earlier.  Her contract was prematurely terminated on 9 June 2013 but the applicant overstayed.  She was arrested on 29 June 2013 and convicted of the offence of breach of condition of stay.  The applicant filed a refugee application with the UNHCR on 16 July 2013.  The applicant was also subject to a removal order which she appealed unsuccessfully.  She then lodged a non-refoulement protection claim on 26 February 2014.

2.  This claim was rejected by the Director of Immigration (“the Director”) on 18 September 2015 and 16 June 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 21 April 2017.  The Director’s decision of 16 June 2017 related to the applicant’s BOR 2 risk claim which was rejected (this came after the TCAB decision relating to the other applicable grounds) but the applicant did not appeal this decision.  The applicant filed a notice of application for leave to apply for judicial review on 7 September 2017 and requested an oral hearing; she appeared in person having had her legal aid application refused.

Extension of time refused

3.  The applicant has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4.  She is, in fact, six weeks late.  Her notice of application does not set out the reasons for the delay as it should. Her supporting affirmation had an explanation which was that she was late in filing her Form 86 because she was waiting for the Director’s decision regarding her BOR 2 risk claim and wanted to appeal it when she received it.  Her explanation made no sense when she said in open court that she had never received the Director’s decision regarding her BOR 2 risk claim.

4.  I have considered the legal principles for granting an extension of time for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

5.  The delay is not insignificant and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers and hearing the applicant, are weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

6.  The basis of the claim was that if she were to return to Indonesia she would be harmed or killed by her husband and some loan sharks that her husband had borrowed money from because she had failed to repay his loans for him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

7.  The applicant was married at 16 years old but her husband was a gambler, womaniser and an alcoholic.  Her parents are now deceased and she has one sister in Indonesia.  He had on occasion violently abused her but she had not sustained serious injuries nor been hospitalised because of his abuse.  He did not physically abuse her after her son was born.  She had in fact separated from her husband after her son was born in June 2003 but this did not stop him pestering her and her family to repay his loans nor the loan sharks visiting to harass her.  The applicant started working as a domestic helper in Hong Kong from 2008.

8.  The applicant’s husband borrowed some money in 2012 and when he failed to repay, the loan shark started to visit her mother to repay the loan.  Neither the applicant or her family could repay it.  For several years until 2014 that loan shark would visit the applicant’s mother on a daily basis demanding money but never hurt her.  From late 2012 the applicant’s husband disappeared and now the applicant does not know his whereabouts.  When she returned home in 2013, almost immediately men started harassing her at home asking her to repay her husband’s debts.  They threatened to kill her and her mother if the money was not paid.  The applicant left immediately and very soon after that went back to Hong Kong.  When this latest contract was terminated prematurely the applicant overstayed.

9.  The adjudicator has analysed the applicant’s claim under the following three applicable grounds;

(a)   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, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”); and

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”).

10.  The adjudicator treated the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the three grounds.  He set out the applicant’s case, evidence and his analysis of it.  He considered the applicant’s case on the basis that her evidence was true but found that even on her own facts she could not successfully establish a case of non-refoulement under any of the applicable grounds.  Her only evidence of violence was before she separated from her husband in 2003 and she has not seen him since 2012 nor knows of his whereabouts.  None of the loan sharks or their men who she met face-to-face ever physically abused her.  None of the same ever physically abused her mother or family.

11.  The adjudicator did consider relevant and up-to-date Country of Origin (“COI”) information and found that even if she was at any risk of abuse from her husband or violence from other men there was State protection available to her if required.  He also found that internal relocation was a viable option without undue hardship in a country as large as Indonesia for the applicant who was young, able-bodied and had plenty of working experience.

12.  The adjudicator concluded that on the applicant’s own facts, she was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on her by anyone acting in an official capacity and that there was a real risk of torture as defined if refouled to Indonesia.  The adjudicator found that the applicant’s claim, on her own facts, had failed to invoke the protection of BOR 2 or BOR 3; there was no evidence she faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  There was no real risk she would arbitrarily be deprived of life, have the death penalty imposed on her or otherwise be deprived of her rights under BOR 2.  Lastly, the adjudicator found she was not at real risk of persecution on any Refugee Convention ground nor did her evidence establish a persecution risk.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find no fault with the adjudicator’s decision.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

14.  The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise she submits both decision-makers failed to properly consider and fairly deal with COI information.  Both cherry picked COI information that resulted in an unreasonable finding.  Both failed to give adequate reasons for rejecting COI in the applicant’s favour.  Both failed to give adequate reasons for rejecting the applicable grounds.  Both failed to consider the concept of extended State acquiescence.  Both irrelevantly considered the fact she did not seek medical treatment for any injuries.  Both failed to consider the psychological impact of her case.  However, there are no particulars provided by the applicant for any of the grounds relied upon.

15.  The adjudicator made a finding that the applicant was not at risk under any applicable ground according to the applicant’s own evidence.  He set out in his decision his findings and reasons for his findings.  He did consider State protection taking into account relevant, up-to-date and objective COI.  The applicant had not claimed there was a flagrant consistent pattern of gross mass violation of human rights therefore, the adjudicator did not consider it.  For the same reason, it was not necessary to assess State acquiescence.  There are no merits in the grounds highlighted above.

16.  I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that shows there was an error of law made by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17.  In my judgement, even if I am wrong that her application is time-barred, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial 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