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HCAL132/2018
[2018] HKCFI 2334
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 132 of 2018
BETWEEN
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Yeni Astuti |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
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 35 (DOB: 20 April 1983).
2. The Applicant claimed she would be harmed or killed by her husband’s creditor because she was not able to help her husband to repay the loan.
3. The Applicant worked in Singapore as domestic helper between 2002 and 2004. Then she returned to Indonesia. She met a security guard called Lukman. She later became pregnant and married Lukman in July 2006. However, Lukman left her in August 2006. The Applicant had not been able to contact her husband since then. Lukman only called the Applicant's sister a few times to enquire about the child.
4. In February 2008, the Applicant came to Hong Kong to work as domestic helper.
5. In December 2009, the Applicant’s mother called the Applicant saying two men came to her home. The men said Lukman had borrowed money from them. They demanded the Applicant to repay for her husband. The loan was 85 million Indonesian rupiah. The men threatened the Applicant's mother that they would kill the Applicant if the latter failed to pay up.
6. The Applicant was in Hong Kong then. She guessed the debt collectors could not find her husband so they targeted her.
7. The Applicant said those men harassed her family in Indonesia regularly. She alleged her father died in 2011 partly due to hypertension arising from the harassment.
8. The Applicant's mother made no report to the police. She feared the matter would get worse if she told the police. She also worried the police would ask for bribes.
9. The Applicant's employer in Hong Kong was also an Indonesian. On 23 December 2009, she went with her employer to Indonesia and stayed there for 10 days. In the last two days, the Applicant went back to her home village secretly. Nothing special happened during those 10 days. The Applicant returned to Hong Kong on 3 January 2010.
10. The Applicant subsequently changed her employer in Hong Kong more than once. In January 2012, she left Hong Kong and stayed in Macau for a few months. She returned in April 2012 to start a new employment contract. It only lasted for three weeks. The Applicant then travelled between Hong Kong and China to have her visa extended. She last entered Hong Kong on 18 August 2012 from China and overstayed from 22 August 2012. She was arrested by the police six months later on 27 February 2013. She applied for non-refoulement protection subsequently.
11. The Applicant said the Indonesia police could not offer her protection since she did not have money to bribe them. She also feared her enemies would bribe the police to obtain her information and even pay the police to locate her, so internal relocation was not viable.
12. 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
13. On 29 January 2018, the Applicant applied for leave for judicial review.
Timeline
14. Things happened in this order: –
| Feb 2008 |
The Applicant came to Hong Kong to work as domestic helper. In April 2012, her last employment contract was terminated. |
| 2012-5-27 |
The Applicant left Hong Kong for China. She travelled between Hong Kong and China on a number of occasions until August 2012. |
| 2012-8-18 |
The Applicant last entered Hong Kong from China. She was allowed to stay until 21 August 2012. |
| 2012-8-22 |
The Applicant began overstaying in Hong Kong. |
| 2013-2-27 |
The Applicant was arrested by the police. |
| 2014-3-11 |
The Applicant raised a non-refoulement claim. |
| 2016-7-25 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-6-9 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-23 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-10 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-11-28 |
The Applicant appeared before the Board for appeal. |
| 2018-1-17 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-1-29 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
15. 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 complaint on a rehearing basis.
16. In Re Moshsin Ali, the Court of Appeal ruled “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]
17. In Form 86, the Applicant named the Board as respondent and the Director as interested party. 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 July 2016, the Director did not accept there was any torture risk, persecution risk or BOR3 risk that warranted non-refoulement protection. He also found reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to those three applicable grounds.
19. In the Director’s further decision dated 10 July 2017, the Director considered the Applicant failed to establish there was a personal and real risk of her rights under the Hong Kong Bill of Rights being violated (including the right to life under BOR2). He refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 28 November 2017.
21. The Adjudicator was prepared to accept a creditor had threatened the Applicant's mother to make the Applicant repay her husband’s debt. However, the Adjudicator did not accept the Applicant's speculation that the creditor would pay the police in Indonesia to find her. He considered the Applicant, who had worked and lived overseas, could relocate herself to other parts of Indonesia to stay away from the threats of the creditor. [6]
22. On 17 January 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.[7]
Grounds of judicial review
23. In Form 86 and 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 further complained she was given the appeal bundle only 10 (actually 11) days before the appeal hearing. She was unrepresented and did not have sufficient time to prepare for the appeal due to language problem. The Applicant said she was confused. She complained the Adjudicator failed to make appropriate arrangement in relation to the service of the hearing bundle.
25. The Applicant also accused the Adjudicator had relied on outdated cases or information not officially recognized or simply hearsay.
Court hearing
26. In Form 86, the Applicant requested a hearing. The hearing took place on 27 June 2018. The Applicant was present. An Indonesian interpreter provided assistance in court.
27. The Applicant applied for the hearing to be adjourned until her legal aid appeal was heard. She said she applied for legal aid on 22 March 2018. The Director of Legal Aid refused her application on 4 June 2018. The appeal was to be heard on 24 August 2018.
28. The Adjudicator gave his decision on 17 January 2018. The Applicant applied for leave for judicial review on 29 January 2018 but delayed applying for legal aid for almost two months, only on 22 March 2018. There was no reason given for the delay. There was also no certainty that the Applicant would win the legal aid appeal and then be granted legal representation. There is no justification for adjournment. I refuse the adjournment application.
29. The Applicant said a friend helped her to prepare Form 86 and the affirmation. She confirmed all the grounds of judicial review were in the documents. She had nothing to add.
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’.[8] Nevertheless, it is said in Re Islam Rafiqul that:
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.” [9]
32. The Applicant mentioned she did not have legal representation to help her preparation for appeal to the Board. She had been represented by the Duty Lawyer Service up to the Director's decision dated 25 July 2016.
33. 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.[10] 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.
34. The Applicant complained she received the appeal bundle only on or about 17 November 2017.
35. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[11] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[12], 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.
36. The Applicant received the appeal bundle 11 calendar days (or 9 working days after excluding two Sundays) prior to the appeal hearing scheduled for 28 November 2017. Thus, the bundle was served on her in time.
37. 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 and there was no evidence to show the bundle was difficult or voluminous.
38. In court, the Applicant admitted she had a friend to prepare Form 86 and the affirmation for her. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated her problem of getting interpretation/ translation assistance and handling documents.
39. A few days’ time certainly was not a long period but could be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for the appeal. There was no evidence to show she had complained to the Adjudicator or asked for adjournment during the appeal hearing.
40. There was also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator. In fact, she said in her affirmation that she answered all the Adjudicator’s questions honestly.[13] That would mean the Applicant knew well what was happening in the appeal hearing. She was not confused.
41. The Applicant accused the Adjudicator had relied on outdated cases or information not officially recognized or simply hearsay. There was no evidence of that. The Applicant also failed to be specific.
42. The Applicant has other vague complaints. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find 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. 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. The Adjudicator 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 is substantiated.
Conclusion
43. 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 29th day of October 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 29/10/2018
Yeni Astuti
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 29/10/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 4340/16/8/59/I402
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1296/16 (formerly RBCZ 3000496/14)
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] CACV 54/2018, para 45.
[6] The Board's decision, paras 29-34.
[7] Ibid., paras 35-43.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
[11] 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.
[12] 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.
[13] The Applicant's affirmation, Point 8 on page 4.
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