MUTMAINAH SITI ALIAS SITI-MUTMAINAH v. GELEV FILIP, ESQ.

HCAL719/2018

[2019] HKCFI 2167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 719 of 2018

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

Following:

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 37 (DOB: 5 January 1982). 

2.  The Applicant claimed she would be harmed or killed by her ex-boyfriend Ivan.

3.  The Applicant first entered Hong Kong in September 2008 to work as domestic helper. Up to December 2012, she had worked in Hong Kong under six employment contracts. She returned to Indonesia and stayed there between September 2009 and June 2010.

4.  The Applicant last entered Hong Kong to work as domestic helper on 8 May 2012. On 21 December 2012, her employment contract was prematurely terminated. She did not depart accordingly but overstayed from 5 January 2013. Two years later, she surrendered to the Immigration Department on 22 January 2015. The Applicant raised a non-refoulement claim on 4 May 2015.

5.  The Applicant claimed she knew Ivan in junior high school in Indonesia. They fell in love. After she had left school, she had no contact with Ivan for a few years. In 2008, she contacted Ivan again when she wanted him to give her a lift.

6.  The Applicant said Ivan later forced her to marry him. She refused. Ivan then threatened to harm her family and to kill her. He threatened her by phone calls and text messages. He also uttered his threats to a friend of the Applicant's in Indonesia. The friend alerted the Applicant.

7.  The Applicant returned to Indonesia and stayed there from September 2009 to June 2010. She lived in her home district but not at her mother’s house. She had not come across Ivan during that period but some of Ivan’s friends confronted her once on the road. They forced her to see Ivan. The Applicant refused. One of Ivan’s friends tried to hit her. Those people eventually left.

8.  The Applicant later came back to Hong Kong to work as domestic helper. In 2012, she received a call from her mother who said Ivan intentionally knocked her down with his motorcycle. The matter was reported to the police but the police only classified it as an accident.

9.  The Applicant called Ivan. Ivan admitted he knocked down her mother because the Applicant refused to marry him. He threatened to kill the Applicant if she went back to Indonesia.

10.  The Applicant still contacted Ivan later but less frequently. Ivan continued to threaten her. Eventually, she cut off his contact in 2013.

11.  Ivan had never inflicted any harm on the Applicant.

12.  The Applicant said she did not know how to seek protection in Hong Kong. She surrendered to the Immigration Department to lodge a non-refoulement claim after a friend had so advised her.

13.  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 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].

14.  On 25 April 2018, 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 Adjudicator as respondent and the Director as interested party. The Adjudicator is the putative respondent; the Director is the putative interested party. 

The Director's decision

18.  In his decision dated 29 March 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

19.  The Applicant appealed to the Board. The Adjudicator interviewed her on 7 March 2018.

20.  The Adjudicator found the Applicant could provide little detail of her relationship with Ivan and there were inconsistent, contradictory and unconvincing features in her allegations. For example, the Applicant stated in her NCF (non-refoulement claim form) that Ivan in 2011 demanded her to go back to Indonesia to marry him. However, she said in the interview by the Director that Ivan forced her to marry him in 2008. In the Board hearing, the Applicant told the Adjudicator that Ivan said in 2008 he wanted to marry her and he was happy to wait for her return from Hong Kong (supposed to be in 2010 then).

21.  Regarding her asking Ivan to give her a lift in 2008, the Applicant at first said she needed a lift because her brother had taken her motorcycle. When the Adjudicator pointed out to the Applicant that her brother was only six years old in 2008, the Applicant changed to say it was her uncle who had taken her motorcycle.

22.  The Adjudicator found it puzzling that Ivan’s friends confronted the Applicant but Ivan did not go after the Applicant when she was in her home district in Indonesia between September 2009 and June 2010.

23.  The Applicant said in her NCF that she called Ivan after her mother had been knocked down by him. However, she denied that in the Board hearing.

24.  The Adjudicator did not find the Applicant credible. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 23 April 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds.

Court hearing

25.  The first hearing took place on 12 September 2018. The Applicant was in person. An Indonesian interpreter provided service in court.

26.  The Applicant said a friend helped her to prepare Form 86 and the affirmation.

27.  The Applicant was told she had wrongly submitted a Board decision relating to a person called MD Azizul Islam and some information in her affirmation dated 25 April 2018 was incorrect.

28.  The court served on the Applicant the Board decision related to her own case. The Applicant understood her mistake.

29.  The matter was adjourned to 27 September 2018 for the Applicant to seek further advice and to prepare any new or supplemental affirmation.

30.  On 27 September 2018, the Applicant said she had taken the correct Board decision to the same friend for advice. The Applicant said she would rely on the same affirmation except where the information was wrong. She confirmed the grounds of her application would be the same and she had nothing to add.

31.  The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.

Grounds of judicial review

32.  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.

33.  The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information ("COI"); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

34.  The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of or insufficient legal representation.

35.  The Applicant further complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened.

36.  The Applicant also accused the Director decided on BOR2 risk without screening.

Discussion

37.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

38.  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]

39.  The Applicant accused the Director decided on BOR2 risk without screening. That was not correct. The Director screened the Applicant's case and considered her claim with respect to all the four applicable grounds in his decision dated 29 March 2017.

40.  The Applicant complained there were failures by the assigned duty lawyer. However, she failed to provide specifics.

41.  The Applicant complained there was a lack of or insufficient legal representation. She was represented by the Duty Lawyer Service up to the Director's decision dated 29 March 2017.

42.  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.[8] The Applicant failed to show her case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

43.  The Applicant raised her language problem.

44.  It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.[9]

45.  In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. She was also assisted by qualified interpreters while still being represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

46.  The Applicant complained she received the appeal bundle only a few days before the Board hearing.

47.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[10] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[11], 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. There was no evidence the rules had been breached.

48.  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. There was no evidence to show the bundle was difficult or voluminous.

49.  A few days certainly were not a long period but could still 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 her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

50.  The Applicant said she answered all the questions honestly in the Board hearing.[12]  That means she knew what was asked and how to answer. She was not confused.

51.  The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he found the Applicant was incredible and thus failed to prove she had any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights.

52.  There was no evidence the Adjudicator had cherry-picked information or taken into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

53.  There was also no evidence that Adjudicator had misdirected himself in law or applied a wrong standard of proof.

54.  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

55.  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.

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

[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, paras 31-45.

[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.

[7] CACV 219/2018 [2018] HKCA 570, para 14(1).

[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.

[9] See Re Zaman Muhammad [2018] HKCA 486 at [13]; Re Gurnishan Singh [2018] HKCA 704 at [13].

  [10] 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.

[11] 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 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.

[12] The Applicant's affirmation, Point 11 on page 4.