Sulis Tianawati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

Case No.HCAL 359/2017[2018] HKCFI 108

Court

High Court CFI

Date—

Judge—

Case Document

100%Judiciary

HCAL359/2017

[2018] HKCFI 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 359 of 2017

BETWEEN
	Sulis Tianawati	Applicant

	and
	Torture Claims Appeal Board /	Putative
	Non-Refoulement Claims Petition Office	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;

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Woodcock:

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 first arrived in Hong Kong on 23 September 2005 to work as a domestic helper. She last arrived in Hong Kong on 30 March 2013 and was permitted to remain for her contract until 11 July 2014 or two weeks after termination of contract whichever was earlier. Her contract was prematurely terminated on 26 May 2013 but she did not depart within two weeks as required and overstayed since 10 June 2013. She was arrested by the police on 9 November 2013. She was sentenced to a suspended term of imprisonment for an Immigration offence on 19 November 2013 and two days later lodged a non-refoulement protection claim.

2.The Director of Immigration (“the Director”) dismissed her claim on 12 August 2016 and 24 March 2017. The applicant filed a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which dismissed her appeal on 11 May 2017. The applicant gave birth to a daughter on 22 November 2015 and she made a similar claim on her daughter’s behalf and it is included as part of the applicant’s claim and they have been processed as one. The applicant filed a notice of application for leave to apply for judicial review on 5 July 2017. She requested an oral hearing which was set down on 26 October 2017. The applicant appeared in person at the hearing having been refused legal aid twice by the Director of Legal Aid.

3.The basis of the applicant’s claim is that if she were to return to Indonesia she would be harmed or killed by her own family and/or the creditor of her mother for failure to repay her mother’s debt. Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions and I only intend to summarise it here.

4.The applicant was born in 1983, received 12 years of education and thereafter worked in either Indonesia or Hong Kong. She first arrived in Hong Kong as a foreign domestic helper in September 2005 and worked here until May 2013 when she was terminated prematurely from her last employment. In December 2012 her mother suffered a stroke and was admitted into hospital. Her medical bills required a loan of 50 million rupiahs and the money was borrowed from a moneylender called Slamet. The monthly instalments were 1.5 million rupiahs. From January to May 2013 the applicant sent her family 500,000 rupiah each month to repay the interest of the loan. However, she lost her job in May 2013 and was unable to send any more money and her family were unable to keep up any monthly repayments.

5.From August 2013 her family were pressured by the moneylender and in turn they pressured the applicant but as she was unemployed and unable to work in Hong Kong, she could not send any money home. In August 2013, her own mother threatened to kill her if she did not repay the loan. In October 2013, the applicant cut off contact with her family. In January 2014 she received a message from her brothers that the moneylender demanded she marry him in lieu of repayment of the loan but she refused.

6.In March 2015 she discovered she was pregnant but had already separated from her Hong Kong boyfriend. She told her brothers in Indonesia but as strict Muslims they were furious because she was unmarried. In December 2015 after she gave birth to her daughter, her family disowned her and threatened to kill her if she returned to Indonesia for bringing shame on them.

7.The adjudicator, as did the Director, 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”).

8.The adjudicator treated the appeal/petition as a rehearing. An oral hearing was conducted and an interpreter arranged to assist the applicant. She elected to answer the adjudicator’s questions. In his decision, the adjudicator set out correctly the law and key legal principles applicable to all four grounds. He considered her claims and evidence set out in letters, statements and her non-refoulement claim form. He considered her evidence given at her screening interview as well as her oral evidence at the appeal hearing. He set out in full in his decision what evidence he felt was relevant, material and pertinent to his subsequent finding of credibility.

9.After carefully considering her credibility he did not find her claims to be credible; she was not a genuine claimant. He gave full reasons for his conclusion and they are obviously carefully considered and it was a decision not made lightly. He concluded that he was not satisfied that her claim which meant their claim, her and her daughter’s claim, for non-refoulement had not been made out.

10.He concluded the applicants had failed to establish they would face a real risk of persecution, real risk of torture or CIDTP under Article 3 of HKBORO, a real risk of being deprived of their right to life under Article 2 of HKBORO and there were no substantial grounds for believing they were in danger of being subjected to torture if returned to Indonesia. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

11.The applicant has sought to judicial review both the Director’s decision as well as the adjudicator’s decision. This is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing/rehearing/appeal. There is no room for judicial review of the Director’s decision. I have considered the grounds of this application against the decision of the TCAB only.

12.I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions in court. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken by him are not made out. I find no substance in the grounds of this application.

13.The first ground alleges a failure to take into account the concept of extended state acquiescence. The applicant did not rely on the extended concept of state acquiescence. This is not a case where state authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill‑treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. There is no merit in this ground.

14.The second ground alleges procedural impropriety; for example, a failure to sufficiently enquire into relevant country of origin information and conduct a critical analysis. The adjudicator rejected the applicant’s evidence in its entirety and gave full and cogent reasons why. Having rejected the applicant’s evidence and his claim on credibility, there was no need for the adjudicator to sufficiently research and enquire into country of origin conditions. He made reference to certain matters that required some research but suffice to say what he did refer to was objective and relevant. There were other allegations in this ground but no particulars were provided. All allegations can be answered with the same response and that is why the adjudicator rejected the claim on credibility; he did not find the applicant a genuine claimant. There is no substance in ground 2.

15.The applicant had nothing to add to her affirmation except to say she was very frightened to return to Indonesia. She added that she wanted to contact the father of her daughter in order for him to pay maintenance towards their daughter for her future.

16.In conclusion, I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17.In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave for judicial review.

Dated 26^th day of January 2018.

	(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:
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);	Sent to the Applicant on 26/1/2018 Sulis Tianawati 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 26/1/2018 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 4524/16/8/243/I414 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1505/16 (formerly RBCZ 909/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
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)).

Form CALL-1