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HCAL709/2018
[2019] HKCFI 34
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 709 of 2018
BETWEEN
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Etik Iswanti |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 37 (DOB: 31 August 1981).
2. The Applicant claimed she would be harmed or killed by her parents’ creditor (“Sulis”). Sulis was a powerful loan shark.
3. In 1993, the Applicant’s parents had borrowed a lot of money from Sulis for their business. The business was not good. The Applicant's parents could not repay the debt. Sulis was abusive towards the Applicant's family. He tried to rape the Applicant's mother but did not succeed. Sulis also threatened he would rape and kill the Applicant.
4. The Applicant's parents did not make any report to the police.
5. In 2005, Sulis seized the house of the Applicant's family because it was a loan security. The Applicant's family was split and she lost contact with her family members then. The Applicant subsequently went to Singapore to work as domestic helper. She returned to Indonesia in 2007 and stayed with her aunt.
6. The Applicant said Sulis found her then. He came with a body guard to demand repayment. The men assaulted her but she managed to escape. She fled to another city, where she received training for four months before coming to Hong Kong to work as domestic helper in 2007.
7. In 2009, while the Applicant was in Hong Kong she was told by her aunt that Sulis had found her mother and tried to rape her but to no success. Sulis threatened he would do the same to the Applicant if the debt was not repaid.
8. The Applicant had worked as domestic helper in Hong Kong since 2007. She last entered Hong Kong on 14 January 2010 and did not leave accordingly after her last employment contract ended in January 2012. She overstayed from 17 January 2012 and was arrested almost a year later on 15 January 2013. The Applicant was then given recognizance by the Immigration Department in March 2013. However, she failed to report for recognizance in August 2013. She was re-arrested eleven months later in July 2014. Then she raised a non-refoulement claim.
9. The Applicant told the Adjudicator that she had reported the matter to the Indonesia police once but she could not remember when and where she made that report. She said the police would not protect her.
10. The Applicant said she lacked the means to relocate herself to other parts of Indonesia.
11. 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 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].
12. On 24 April 2018, the Applicant applied for leave for judicial review.
Timeline
13. Things happened in this order: –
| 2007 |
The Applicant first came to Hong Kong to work as domestic helper. |
| 2010-1-4 |
The Applicant last entered Hong Kong to work as domestic helper. Upon termination of the contract, she was required to leave on or before 16 January 2012. |
| 2012-1-17 |
The Applicant began overstaying in Hong Kong. |
| 2013-1-15 |
The Applicant was arrested by the police for overstaying. She was given recognizance by the Immigration Department in March 2013. |
| 2013-8-19 |
The Applicant failed to report for recognizance. |
| 2014-7-25 |
The Applicant was re-arrested by the police. |
| 2014-7-28 |
The Applicant lodged a non-refoulement claim. |
| 2017-1-13 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”] |
| 2018-1-22 |
The Applicant appeared before the Board for appeal. |
| 2018-4-19 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-4-24 |
The Applicant applied for leave for judicial review. |
Respondents
14. 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 case on a rehearing basis.
15. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
16. In Re Moshsin Ali, the Court of Appeal states that “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] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decision
17. 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. On 13 January 2017, the Director refused the Applicant's non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed her on 22 January 2018.
19. The Adjudicator noted the alleged loan was drawn by the Applicant's parents almost 25 years ago. He was prepared to accept the Applicant's parents had difficulty to pay back the loan and Sulis pressed them hard. However, the Adjudicator did not believe Sulis had targeted the Applicant for any harm. The Applicant had not been inflicted with severe harm. Her behaviour was also not consistent with one who had genuine fear of serious harm since she delayed much in seeking non-refoulement protection. The Adjudicator found the Applicant's claim incredible. [6] He did not believe the Applicant was unable to repay Sulis when she had worked as domestic helper overseas for so many years. He did not believe the Applicant's family became dispersed and the Applicant lost contact with her family members then.
20. In any event, the Adjudicator was satisfied that reasonable state protection and internal relocation were available to the Applicant.[7]
21. The Adjudicator considered the Applicant failed to prove any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 19 April 2018, he refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds of judicial review
22. The Applicant complained against the Director and the Adjudicator. As said in paragraph 16 above, I would deal with the current application in relation to the Board's decision only since the Director's decision had gone on appeal to the Board as rehearing.
23. In her affirmation, the Applicant said the Adjudicator failed to consider properly the issue of state protection; failed to conduct sufficient inquiry of relevant country-of-origin information ("COI"); failed to give reasons for the assessment of BOR 3 risk and had no sufficient basis to find there was a lack of BOR3 risk; failed to take into account her psychological strain arising from the threats of the loan shark; failed to consider the situation in Indonesia and wrongly decided that internal relocation was viable.
Court hearing
24. The hearing took place on 19 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court.
25. The Applicant said a friend helped her to prepare the documents and all the grounds of judicial review were in her affirmation. She could not elaborate those grounds or give particulars of her complaints.
26. The Applicant confirmed she had submitted all to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
28. 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: –
“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]
29. The Applicant complained the Adjudicator failed to consider properly the issue of state protection and failed to conduct sufficient inquiry of relevant country-of-origin information ("COI"). She also said the Adjudicator failed to consider the situation in Indonesia and wrongly decided that internal relocation was viable.
30. The Applicant's complaints are not justified. The Adjudicator did have proper regard of her case and relevant COI before he ruled reasonable state protection and internal relocation were both available to the Applicant. His finding was not Wednesbury unreasonable.
31. The Applicant complained the Adjudicator failed to give reasons for the assessment of BOR 3 risk and had no sufficient basis to find there was a lack of BOR3 risk. Again, such complaints are not correct. The paragraph under the title ‘BOR 2 & 3 Risks’ was brief.[10] However, it was only a conclusion. The Adjudicator’s decision must be read as a whole. In his preceding paragraphs, the Adjudicator had given detailed reasons for his analysis of the Applicant's case.
32. The Applicant also complained the Adjudicator failed to take into account her psychological strain arising from the threats of the loan shark.
33. The Adjudicator disbelieved the Applicant was a genuine non-refoulement protection seeker and did not accept she faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. There was no fear of harm or psychological strain found.
34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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. 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 of the case. 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. None of the Applicant's complaints is substantiated.
Conclusion
35. 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 9th day of January 2019
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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
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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 9/1/2019
Etik Iswanti
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 9/1/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 5921/17/1/205/I593
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2933/16 (formerly RBCZ 13411/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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 58-67.
[7] Ibid., paras 68-76.
[8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[9] CACV 219/2018 [2018] HKCA 570, para 14(1).
[10] The Board's decision, para 79.
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