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

HCAL586/2017

[2018] HKCFI 905

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 586 of 2017

BETWEEN

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 worked in Hong Kong as a foreign domestic helper in 2005 and then in 2009.  She last arrived in June 2009 and had her Visa extended until 11 June 2012 or two weeks after the termination of her contract whichever was the earlier.  However, she was arrested for the offence of theft on 23 November 2011.  She served a four-week term of imprisonment and was discharged on 9 January 2012.  Whilst serving that term of imprisonment she lodged a non-refoulement protection claim.

2.That claim was rejected by the Director of Immigration (“the Director”) on 7 July 2015 and 6 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 4 August 2017.  The TCAB had scheduled an oral hearing for 11 October 2016.  A notice of hearing was sent to the applicant’s last known address provided by her in her notice of appeal/petition.  She failed to appear on the hearing date and no explanation was ever received by the TCAB to explain her absence.  On the day of the hearing, unsuccessful efforts were made by the staff of the TCAB to contact her on the mobile phone number provided by her in the same notice.

3.Pursuant to S15 of Schedule 1A of the Immigration (Amendment) Ordinance, a notice was sent to the applicant by letter dated 11 October 2016 that gave her seven days to provide a satisfactory written explanation of her failure to attend the hearing.  She was to provide any supporting documentary evidence.  If there was no such written explanation, then the board would determine her appeal in her absence.  This notice was sent to the address provided by her in her notice of appeal/petition.  There was no reply to this notice by the applicant.  Therefore, the adjudicator decided to determine the appeal/petition in her absence.

4.The applicant has filed a notice of application for leave to apply for judicial review dated 5 September 2017.  In her affirmation she does request an oral hearing which was set down for 29 December 2017 and the applicant appeared in person having had her application for legal aid refused.

5.The basis of her claim is that if she is refouled to Indonesia she will be harmed or killed by either her estranged husband or the moneylender who lent money to her husband and expected her to repay the loan.  Her husband had produced their marriage certificate and borrowed money in their joint names.  The Director set out her evidence and claim in detail in his decision therefore, I do not need to repeat it here.

6.To summarise, her husband is a violent gambling drunkard and she was the victim of domestic abuse.  The applicant had worked in Hong Kong and in Singapore in the past and all her husband was good for was taking her hard earned money.  The applicant had never once reported her husband to the police for beating her.  After she came to Hong Kong on the last occasion, after 2009 he borrowed money in her name using their marriage certificate and expected her to repay the loan.

7.When she stopped repaying, the moneylender went to her family home, took the applicant’s motorbikes, threatened her mother and told her neighbours there was a reward on her head.  Her husband has also threatened to kill her when she returns to Indonesia because he has found out she is in a relationship with another man in Hong Kong.  After the threats from the moneylender, she has lost contact with her entire family in Indonesia.

8.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”).

9.The adjudicator was satisfied after sending a notice pursuant to the relevant section to the applicant and when there was no explanation received within seven days that he could proceed to determine the appeal despite the applicant’s absence.  In his decision the adjudicator set out the law and key legal principles applicable to the four grounds.  He set out the burden of proof and standard of proof required.

10.He correctly states that it is incumbent upon the applicant to satisfy the TCAB that there is a real risk or chance or that there are substantial grounds for believing that she would suffer the harm she claims to fear from her estranged husband and/or the moneylender if she were to return to Indonesia.  The adjudicator could not determine there was a real risk or that there were substantial grounds in her absence therefore the appeal/petition was dismissed.

Leave to apply for judicial review

11.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 4 August 2017, no other decision.  However, in her affirmation she does also include the decision of the Director dated 7 July 2015.

12.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.

13.In her affirmation, in her first ground the applicant explains that the TCAB sent a notice of hearing to her address but unfortunately she did not receive the letter and they did not call her mobile telephone number to inform her of the date therefore she was absent at the appeal hearing.  During the oral hearing she admitted to the court that she had moved house and not informed the TCAB which is very different from the explanation in the affirmation.  The applicant has a duty to update her address with the TCAB having served a notice of appeal on the TCAB.  The fault lies entirely with the applicant.

14.In paragraph 2 of her affirmation which I take to be ground 2 refers to the adjudicator not providing adequate reasons for rejecting the applicant’s BOR 2 risk claim.  The adjudicator said in paragraph 10 of his decision that he took into account the materials supplied with and referred to in the appeal bundle, the Director’s decisions and all the applicant’s evidence.  He set out Article 2 of the Hong Kong Bill of Rights Ordinance and reiterated that the applicant needed to show that there is a personal and real risk of her absolute and non-derogable rights, including the right to life, under BOR 2 being violated.  He found her failure to attend the hearing meant he was unable to determine the credibility of her assertions and therefore unable to determine whether there is a real risk or there are substantial grounds for believing that she would suffer the harm she claims to fear was she to return to Indonesia.  In any event, her claim did not rely on BOR 2, she did not assert she was at risk of harm from capital punishment inflicted by the government or faced harm from her government that would put her life at risk.  There was no merit in that ground.

15.Paragraphs 3, 4 and 5 of her affirmation submit procedural impropriety against the Director’s decision and complain of a failure to conduct sufficient enquiry into Country of Origin (“COI”) information and a failure to give sufficient reasons for finding a failure of a BOR 3 claim.  As I have said above, this application should only apply to the TCAB decision but if I am wrong, it is clear the director made no errors of law nor do I see any evidence of procedural unfairness.  The COI information the Director referred to and relied on is abundant, objective and up-to-date and the finding of State protection most reasonable.  He sets out the test for a BOR 3 claim, applies the applicant’s evidence and gives plain, full and complete reasons for his findings.

16.I do not find any grounds in the applicant’s affirmation that show there was an error of law made by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  I do not see the decision to proceed to decide on the papers without a rehearing in the applicant’s absence as unreasonable; it was not Wednesbury unreasonable.  This applies also to the decision of the Director.

17.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.

Dated 8^th day of May 2018.

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