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

HCAL418/2017

[2018] HKCFI 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 418 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 arrived in Hong Kong on 9 August 2010 to work as a foreign domestic helper but her contract was prematurely terminated on 4 March 2011 but she did not leave within two weeks as required.  She overstayed and was arrested by the police on 12 July 2011.  After her arrest she lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 22 August 2016 and 24 May 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected on 7 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 18 July 2017 and requested an oral hearing which was set down to on 29 December 2017 when the applicant appeared in person after her leave for legal aid was refused.

2.  The basis of her claim was that if she was returned to Indonesia she would be harmed or killed by her ex-husband and she feared the Bank Republic Indonesia because her father owed them money as well as an unknown moneylender because her brother owed him money.  Both these parties had been in touch with the applicant whilst she was in Hong Kong on one occasion to discuss these debts.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant had married in 2000, then worked in Singapore until 2004 and Hong Kong from 2006.  The marriage was volatile from beginning, her husband a drunk, adulterer and violent towards her.  It was because of his violence and always asking for money that led her to work abroad.  He borrowed money often and was unable to pay, when she refused to send money to him, he threatened to kill her when she returned to Indonesia.  She divorced her husband who had custody of their son and had had no contact with them or anyone in her own family since 2009.

4.  Her father had an outstanding debt of 10 million IDR but he passed away in 2008.  The bank had asked the applicant to repay this money and when she could not, the bank confiscated her father’s house and land. The applicant thought there was still 10 million IDR outstanding and she did not know what the bank would do if she returned to Indonesia.  They had called her once when she was in Hong Kong to ask her to repay the outstanding loan.

5.  Her brother had borrowed 40 million IDR in 2009 and signed her name as a guarantor.  The applicant had no idea until one day the creditor called her when she was in Hong Kong and threatened her.  He said that she had to repay the debt on behalf of her brother otherwise he would kill her when she returned to Indonesia.  The applicant then changed her phone number the next day and the creditor has never been in touch since.  The applicant has not been in contact with her brother again.

6.  The Director and the adjudicator of the TCAB analysed the applicant’s claim under all 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”);

(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”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator conducted an oral hearing and treated it as a rehearing.  She elected to answer questions and give evidence.  During the hearing the applicant told the adjudicator that her ex-husband had drowned her son.  Her friend had told her this.  She did not report this to the police because her ex-husband had now gone into politics and was very powerful.  He had married a rich woman and had become head of the neighbourhood Association in the village where she used to live.  The applicant told the adjudicator that her ex-husband killed their son because she divorced him and refused to reconcile with him.

8.  The applicant had no evidence that she could provide to support this evidence such as a death certificate or a photograph of his tombstone.  The adjudicator has set out in detail the evidence and questions as well as answers relating to this in her decision.  The adjudicator also correctly set out the law and key legal principles relating to the four grounds as well as the relevant approach in assessing the credibility of the applicant. She set out the applicant’s evidence and her analysis of it.

9.  She accepted that the applicant had been a victim of domestic violence and her ex-husband was a financially irresponsible person.  She had divorced her husband in 2009 and had no contact since.  On her own evidence she had not suffered physical and/or mental suffering of the requisite severity.  Those threats would fall short of the required level of a genuine and substantial risk.  There was no evidence that her ex-husband had treated the applicant with an intention listed in the definition of torture in section 37U of the Immigration Ordinance.

10.  The applicant had before the adjudicator, now suggested he was no longer a farmer and philanderer but a rich powerful political figurehead but without any credible evidence which should not have been hard to produce.  The adjudicator did not accept that as credible.  It was certainly not evidence that he was a public official or a person able to wield the authority of the government and/or State.

11.  The mention of the bank and the phone call from her brother’s creditor is neither here nor there and certainly not evidence of ill-treatment against the applicant or any genuine risk to her if refouled.

12.  The adjudicator found when she applied the applicant’s evidence and her findings to all four grounds, the applicant had not made out a case for non-refoulement protection.  She was not able to establish within the definition of torture under section 37U(1) of the Ordinance that severe pain or suffering had been inflicted on her, let alone by those identified within that section.  There was no real risk of torture if she returned to Indonesia.  The adjudicator found that the applicant’s claim had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found her fear of ill-treatment did not fall within the definition of persecution and her persecution risk claim failed.  Despite her findings, she nevertheless went on to consider internal relocation; she found internal relocation a viable option for the applicant.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.  In her Form 86 the applicant states both the Director and the TCAB as proposed respondents but then states the TCAB as an interested party.  In the same Form 86 she then only seeks to apply to judicial review the TCAB decision of 7 July 2017, no other decision.  However, in her affirmation she does also include the decision of the Director dated 22 August 2016.

14.  The applicant utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB is to treat the appeal/petition as a de novo hearing or rehearing.  In my view, to seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the Director’s decision unless in very specific circumstances.  Those circumstances do not arise here.  I have considered the grounds of this application against the decision of the TCAB only.

15.  In her affirmation, in what purports to be the first ground of procedural impropriety, she reiterates that her friend told her that her ex-husband killed their son and will kill her if they meet.  In the next paragraph both decision-makers are accused of failing to give her an opportunity of clarifying inconsistencies but no particulars are given nor are any inconsistencies clarified.  There is no merit in this ground.

16.  In the last two paragraphs, again both decision-makers are accused of failing to consider her risk is real and there was insufficient basis to conclude she was not at risk of being subjected to torture and/or CIDTP.  The adjudicator applied the law correctly to her evidence and I have to say so did the Director.  There was no error of law and the conclusion was the only conclusion to be drawn; on her own evidence she had not established that the ill-treatment which she would face if refouled attains a minimum level of severity and that she faces a genuine and substantial risk of being subjected to such mistreatment.  There was no merit in this ground.

17.  I do not find any grounds in the applicant’s affirmation that shows there was an error of law by the adjudicator of the TCAB. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness on her part.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same in fact, applies to the Director.

18.  In my judgement, 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