|
HCAL 2321/2019
[2025] HKCFI 691
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2321 of 2019
|
BETWEEN
|
| |
Eny Setyowati |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
| |
and |
|
| |
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 To:
1. Leave to amend the Form 86 be granted: and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 12 August 2019 for leave to apply for judicial review (the “leave application”) of the decision “made by the Immigration Department on [her] case on 2 August 2019. She named the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) and the Director of Immigration (the “Director”) as the proposed respondent. The available documents in relation to the Applicant’s non-refoulement claim show that the only decision relating to the Applicant and dated 2 August 2019 is the decision of the Board (not the Immigration Department or the Director) dismissing her appeal against the decision of the Director in his Notice of Decision dated 26 February 2018 (the “Notice”), refusing her non-refoulement application. Hence, leave is granted to amend the leave application making the Decision the subject matter of the leave application.
Background
2. The Applicant is an Indonesian national. She last entered Hong Kong to work as a domestic helper in August 2010. She overstayed since 28 May 2015 after her contract of employment was prematurely terminated. On 12 May 2015, she was arrested by the police for theft. On 6 August 2015, she was sentenced to six months’ imprisonment. While serving her sentence, she lodged a non-refoulement claim on 29 September 2015.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by her with legal assistance and the record of her screening interview (the “ROI”) in the presence of her lawyer. In gist, she claims that if returned to Indonesia, she will be harmed or killed by her uncle as she refused to sell her house.
5. The Applicant is now 45 years of age. She received nine years’ formal education and had 14 years’ working experience. She is married with a child, but she has lost contact with her husband and her child since 2011. Her three siblings are living in Indonesia.
6. The Applicant inherited a house from her father when she was about ten years old. Her uncle had pressurised her mother to transfer the ownership of the house to him, but her mother refused. After her mother passed away in 1994, her uncle who kept the title documents of the house for the Applicant, started to pressurise her to transfer the ownership of house to him. She refused. He shouted at her, pulled her hair and slapped her face to intimidate her. The Applicant self-treated the injuries at home and did not report the incident to the police. Being afraid of her uncle, she moved to different places in Indonesia for work after graduation in 1995. Since then, her uncle occupied the house.
7. In 2002, she went to work in Singapore as a domestic helper. In 2003, she learnt from her friend that her younger brother was severely ill. Thus, she resumed contact with her uncle, as he had informal custody of her younger brother. At her uncle’s instruction, she remitted money to him for her younger brother. Since then, her uncle repeatedly requested her to transfer the ownership of the house to him. Later, through her uncle’s introduction, she marry her husband in October 2004 under unregistered Islamic rituals in Indonesia and lived together in Jember.
8. In late 2009, her uncle renewed his request for the ownership of the house. One day, when she was two months pregnant with her second child, she and her husband went to visit her uncle in Malang. On that occasion, her uncle forced her to sign the papers to transferring the ownership of the house to him. She refused and engaged in a serious argument. In the heat of the moment, her uncle pushed her and she fell against the corner of a table resulting a miscarriage. On her husband’s advice, she did not report the incident to the police.
9. She stayed in Malang for two days to rest. During that time her uncle continued to pressurise her to transfer the ownership of the house to him. Her husband began to side with her uncle. Out of fear of her uncle and disappointed at her husband, she came to Hong Kong to work as a foreign domestic helper in August 2010. She has lost contact with her husband and child since 2011. She heard that her husband had left their home with their daughter and remarried.
10. The Applicant said that the problem continued because her uncle was eager to have the house. She did not return to Indonesia for fear that her uncle would try to force her to sign transfer documents. She believe he would harm or even kill her.
11. The Applicant claimed that state protection was not available because her dispute with her uncle is a family matter. She does not believe internal relocation viable, because her uncle knows her friends and relatives and hence could locate her throughout the country.
The finding of the Board
12. The Applicant testified before the Board. Despite the absence of supporting documentary evidence, the Board found that there was certain consistency in her evidence in relation to the house. It accepted that the Applicant had inherited the house from her father. It accepted that she was under her uncle’s pressure to sell the house with a view to him benefiting from the sale, but the Applicant did not want to sell.
13. Despite the above, the Board found the Applicant’s claim of threat of death by her uncle problematic. On the Applicant’s own evidence, their conflict over the house had been on going before her mother’s death in 1994 and peaked around 2011 when she came to work in Hong Kong, but without escalating to threats of death, although violence was claimed. For several years the Applicant lived on reasonably good terms with her uncle who also took an interest in her life, including introducing her to her husband. The Board researched into Islamic law and Indonesian law and found that the uncle would only stand to lose should he murder the Applicant both in terms of the sanctions in criminal law and because he would not inherit the house.
14. The Board then found on the basis of the objective country of origin information that the Applicant could safely relocate to Jakarta, Java or many of the eleven other cities with population of over one million.
15. Then, applying the law applicable to non-refoulement protection to the above facts, it found the Applicant is not entitled to protection under any of the applicable grounds under the USM.
Legal principles applicable to judicial review
16. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
17. The Applicant did not advance any grounds for judicial review in her Form 86 or her supporting affirmation. At the hearing, after the legal principles in the above section had been explained to her, she confirmed she had no complaint about errors of law in the Decision and left it to the Court to look for such errors on her behalf. She also confirmed that she had no complaint about procedural unfairness and irrationality in the Decision. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a high standard of fairness. The Board assessed the Applicant’s claim on the basis of her case as she asserted.
19. Though the Board did not make express findings on all the relevant issues, it identified the fatal areas in the Applicant’s claim under each of the four applicable grounds which she failed to prove. It found the Applicant’s claim under Torture Risk ground must fail because of the absence of evidence of a real chance that the Applicant would be killed, harmed or tortured with the consent or acquiescence of a public official. It rejected her claim under BOR 3 Risk ground as she failed to establish that she faces a genuine and substantial risk of being subjected to torture or cruel inhuman or degrading treatment or punishment, if returned to Indonesia. It rejected her claim under Persecution Risk ground as her risk of harm did not arise on account of a reason under the Convention relating to the status of Refugees and its 1967 Protocol (the “Convention reasons”). It rejected her claim under BOR 2 Risk ground simply due to lack of evidence to show that she has committed a criminal offence, let alone one for which she would face capital punishment. It did not deal with the risk arising from the necessary and foreseeable consequences of refoulement. However, the Board was aware of the possibility of such risk as evidenced by its reference to the case of ARJ v Australia[6]. The absence of such risk is obvious and is the necessary consequence of the Applicant’s failure to prove the risk under the other three applicable grounds.
20. All these are finding of law and of facts. Insofar as these are finding of the law, they are absolutely correct. Insofar as these are finding of fact, they are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. This Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The proposed judicial review has no realistic prospect of success.
21. As the Board made no finding on the other relevant issues, hence when scrutinising the Board’s Decision, this Court did so on the basis that all those other relevant issues were resolved in favour of the Applicant. The style in which the Board presented its finding could not be said to be commendable. It is certainly one which this Court will not recommend. However, it did fairly and adequately determine the merits of the Applicant’s appeal under the situation of this particular case. The Applicant’s claim is obviously unsustainable. She has not even been threatened with death expressly, impliedly or by implication. The miscarriage was an accident and the injuries she suffered did not attain the minimum level of severity. It is not her case that a death sentence has been passed on her. It is also obvious that her risk of persecution, even if it were genuine, did not arise on account of a Convention reason.
Conclusion
22. For the above reasons, the leave application is refused.
Dated the 18th day of February 2025
| |
(Seline Sze)
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 the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 18/02/2025
Eny Setyowati
Applicant’s ref. no:
Nil |
|
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 18/02/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10674/18/3/126/I1153
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 14/18 (Formerly as RBCZ 13529/15)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] 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
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
[6] ARJ v Australia, No. 692/1996 (11 August 1997, at 6.8 and 6.14)
|