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

HCAL468/2017

[2018] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 468 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 last came to Hong Kong on 15 May 2013 to work as a foreign domestic helper but her contract was terminated early on 16 August 2013.  She did not depart Hong Kong as required within 14 days but overstayed and was arrested on 28 April 2014.  After her arrest she then lodged a non-refoulement protection claim which the Director of Immigration (“the Director”) rejected on 21 April 2016 and 10 January 2017.  The applicant then lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which the board rejected on 19 June 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 31 July 2017.  She requested an oral hearing and appeared in person after her application for legal aid was refused.

2.The basis of her claim is that if she were to return to Indonesia she would be harmed by the son of loan sharks who had lent money to her parents but it remained unpaid.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.  Her version of events she related to the adjudicator differed to the version she related to the Director.

3.The applicant was born in 1979, single and worked as a domestic helper in Indonesia from 1998 to 2000 as well as stints in Singapore and Hong Kong.  She told the Director that in about 2000 she was working in Jakarta and visited her parents during her holiday.  They then told her that they had borrowed money from loan sharks but were unable to repay their debt.  They told her that the loan sharks had suggested the applicant marry their son to settle the debt but she refused because he was a violent person.  The applicant took a job in West Java and remitted a salary to her parents.  On her next visit three months later, the loan shark’s son demanded she repay the entire loan and when she refused he kidnapped her and kept her in a locked room in his home for one month.  She was only released when it was agreed she would remit all salaries to repay the loan.

4.Before she left for Singapore she was kidnapped and detained by the son again for a second time and fed only water and instant noodles.  He punched her face when she refused to marry him she managed to run away after being locked up for two weeks.  She required stitches to a split lip.  She then went to an Islamic school and worked for the religious teacher; she worked for him until 2005.  During that period, she said that the son of the loan sharks came to see her once and sent his people to see her twice.  In 2005 she went to Jakarta to train as an employment agency from a year before to Singapore in 2006 for a two-year contract.  She did not earn enough to repay the loan and was threatened with death if it was not repaid soon.

5.She went back to work for the religious teacher who helped her get a Visa and employment in Hong Kong but it took a long time and she did not go to Hong Kong until 2011 however, she only lasted a few months before she was terminated and sent home.  She stayed with a friend rather than her parents and had no contact with them before returning to Hong Kong again in May 2013.

6.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”).

7.The adjudicator of the TCAB treated the appeal/petition as a rehearing.  In her decision the adjudicator correctly set out the law and key legal principles applicable to the grounds.  She set out the version of events given to her during the appeal hearing as well as the discrepancies she identified and asked the applicant to explain.  The applicant was unable to give satisfactory explanations for significant material discrepancies in her account.  The adjudicator found her inconsistencies seriously undermined the credibility.

8.The adjudicator gave full reasons for her findings and concluded that the applicant was not kidnapped or harmed by the son of loan sharks because she would not marry him.  Her evidence in relation to those life changing and material events was too unreliable; the adjudicator found that she had manufactured or exaggerated her evidence to support her claim.

9.The adjudicator concluded that the applicant had not made out a case for non-refoulement protection.  She was unable to successfully show she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

11.The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits the adjudicator’s finding the applicant was not credible was an error and insufficient reason was given for that finding.  The adjudicator also failed to treat the appeal as a rehearing.  She also failed to consider the concept of extended State acquiescence.  The Director failed to consider Country of Origin information in the applicant’s favour and also failed to consider the concept of extended State acquiescence.

12.Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only, 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 or rehearing.  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 decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.  Leaving aside that view, even if this application applied to both decision-makers, there are no merits in the grounds against either.

13.There are no particulars put forward in his grounds against either the adjudicator or the Director.  The applicant would have been legally represented before the Director.  His legal representative would have known that the Country of Origin information was relevant.  Because of the lack of particulars, I find no merit in the accusation that the Director cherry-picked at information to the detriment of the applicant.

14.Both the Director and the adjudicator of the TCAB did not need to consider the concept of extended State acquiescence.  The applicant made no report to the police or any authority.  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.

15.There is no merit in the ground that the adjudicator did not treat the appeal as a rehearing.  Clearly the adjudicator evaluated the applicant’s evidence again and that is how she concluded that there were serious discrepancies and inconsistencies.  She was entitled to make the evaluation that she did and clearly did it based on the evidence she heard and on the evidence before her.  There is no merit in the grounds against the adjudicator.

16.After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were 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 to apply for judicial review.

Dated 27^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