Sumiatun and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL553/2017

[2018] HKCFI 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 553 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 Applicants 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.There are two applicants in this application, the first is an Indonesian national who came to Hong Kong as a foreign domestic helper and overstayed since 7 December 2013 after her contract was prematurely terminated.  She remained undetected and was arrested five weeks later on 15 January 2014 when she was arrested by the police for working illegally.  The second applicant is her son now over two years’ old who was born in Hong Kong out of wedlock.

2.She only lodged a non-refoulement protection claim after serving a term of imprisonment for working illegally and it was rejected by the Director of Immigration (“the Director”) on 20 August 2015 and 18 November 2016.  She lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 2 February 2017.  The applicant filed a notice for leave to apply for judicial review on 24 August 2017.

3.The applicants application, the Form 86, was filed late.  They failed to file it in a timely manner within three months of the date of the adjudicator’s decision, (Order 53 rule 4).  It is in fact three months and three weeks late.  The notice of application does not set out any reasons for the delay as required and nor does the supporting affirmation.  In fact, there is no acknowledgement it is late except for a mention in the affirmation that relief is sought, an extension of time is sought.  However, since her affirmation is what I describe as a pro forma affirmation used almost word for word and time and time again by other applicants, the relief sought is always the same even when there is no delay or extension of time required.

4.I have considered the legal principles for granting an extension of time for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raises any questions of general public importance.

5.The delay is not insignificant, there is no explanation for the delay and there is no good reason for extending time.  The merits of the substantive application, after perusal of the papers and hearing the applicant are weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time sought is an abuse of process and ought to be refused. Delay alone is enough to dispose of this application.  However, if I am wrong I proceed to consider the merits.

Observations

6.The basis of the applicant’s fear is that if she were to return to Indonesia she would be harmed or killed by her parents as well as a loan shark called Joe.  Her parents had borrowed money from this loan shark and had failed to repay it.  He demanded the applicant marry him to settle the debt but she refused because he already had four wives.  She claims that the father of her son born in Hong Kong is a Christian and her son is also a Christian.  If he returned to Indonesia with her, her parents would harm or kill him because he was born out of wedlock and Christian which would be unacceptable to the Muslim majority.

7.Both the Director and the adjudicator of the TCAB set out the applicants’ claim and evidence in detail in their decisions therefore, I do not intend repeat it.  The applicant grew up in a village as a Muslim and received seven years of schooling.  She had heard from her sister that her father had borrowed about Rs.30 million from a loan shark called Joe but she knows no details of this loan.  One day in 2005 Joe and some men came to her home threatening her father; if the loan was not repaid then his house would be confiscated.  He also demanded that the applicant should marry him to settle the loan.  He threatened to kill her father and the applicant if she refused to marry him but on that occasion nobody was physically assaulted.  By the end of 2005 the applicant refused to marry Joe and to avoid this she went to live in West Java for two years as a domestic helper.

8.After West Java, the applicant went to Singapore until 2009 to work and returned home at the end of that year.  Her parents were still insisting that she marry Joe.  Despite her having been gone for four years Joe had not ever carried out his threat to harm his father nor confiscate his home.  The applicant trained for five months so that she could work in Hong Kong as a domestic helper and left for the territory in May 2010.  Her second contract was terminated prematurely on 22 November 2013 and she overstayed in Hong Kong from that date.

9.As far as the 2^nd applicant is concerned, the 1st applicant said she met his father in about 2012 and he was another asylum seeker as well as Christian.  Their son was born in April 2015 out of wedlock.

The decision of the adjudicator of the TCAB

10.The Director and the adjudicator 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”).

11.The adjudicator treated the appeal as a rehearing and conducted an oral hearing. The 1^st applicant had her rights explain to her and elected not to give evidence nor answer any questions.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds as well as their evidence and claim.  The adjudicator considered her problems were private in nature.  She had never been physically abused or harmed or suffered severe pain, be it physical or mental suffering at the hands of her parents or the loan shark.  He also set out relevant and objective Country of Origin (“COI”) information he referred to and relied on; setting in his decision.  He found that State protection was available to both applicants if they were at any risk upon their return to Indonesia.

12.The adjudicator found when he applied the applicants’ evidence to all four grounds, the applicant had not made out a case for non-refoulement protection. On her own facts, she had not established within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on her by members of her family or the loan shark and that there was a real risk of torture by them if she was refouled.  The adjudicator found that the applicants claim on her own facts had failed to invoke the protection of BOR 2 or BOR 3.  Lastly, the adjudicator found there to be no well-founded fear of ill-treatment that fell within the definition of persecution and her persecution risk claim failed.  Despite this finding, he nevertheless went on to consider internal relocation; he found internal relocation a viable option for both applicants.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

13.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed material, claims and evidence.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

14.There are eight grounds in this supporting affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned.  Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement.  These grounds have no merits.

15.In grounds 1, 2 and 4, it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and enquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did consider relevant and objective COI in depth.  It was not the applicant’s case and it was unnecessary to assess State acquiescence or whether Indonesia had a consistent pattern of mass violation of human rights that would affect her personally.  These grounds are not arguable.

16.The applicant complains she was not given sufficient time to prepare for her appeal, the appeal bundle was in English, she was confused during the appeal and felt the hearing was unfair to her and her son.  I was satisfied the applicant had the assistance of an interpreter and had the procedure of the hearing explained to her.  She elected not to give evidence.  There was no record of any complaint or comment that she was confused, ill-prepared or unhappy to proceed with the oral hearing.  There is no merit in this ground.

17.There is a complaint that the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 18 November 2016 which was before the appeal hearing on 28 November 2016.

18.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.

19.In my judgement, even if I am wrong in finding delay alone is enough to dispose of this application, the applicants’ claim is still not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 7^th day of June 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