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

HCAL605/2017

[2018] HKCFI 1354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 605 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 arrived in Hong Kong to work as a domestic helper on 14 February 2008 and was permitted to remain for two years or two weeks after termination of her employment contract, whichever was earlier.  Her contract was prematurely terminated on 27 December 2008 but the applicant overstayed.  She was arrested on 5 March 2009, convicted of the offence of breach of condition of stay and given a suspended sentence.  The applicant had filed a torture claim but it was rejected by the Immigration Department on 16 February 2012.  She was then arrested again on 27 November 2013 for illegally working whilst a removal order was in force and sentenced to 15 months’ imprisonment.  She then lodged a non-refoulement protection claim on 26 February 2014.

2.This claim was rejected by the Director of Immigration (“the Director”) on 16 February 2015 and 21 December 2016, She lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which was rejected on 2 June 2017.  The applicant filed a notice of application for leave to apply for judicial review on 11 September 2017 and requested an oral hearing; she appeared in person having had her legal aid application refused.

Extension of time refused

3.The applicant has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision, Order 53 Rule 4.  She is, in fact, nine days late.  Her notice of application does not set out the reasons for the delay as it should. Her supporting affirmation had an explanation which was that she was late in filing her Form 86 because she did not receive the TCAB decision posted to her. She went in person to the TCAB office and requested a copy.  She then filed her Form 86 as soon as she received it.  There was no further detail as to why she did not receive it by post.

4.I have considered the legal principles for granting an extension of time to apply 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 to the public administration and whether the application raised any questions of general public importance.

5.The delay is not significant but there is no good reason for extending time.  This is because 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 claim was that if she were to return to Indonesia she would be harmed or killed by Iwan who wanted to marry her but she refused and her parents had promised him the applicant would marry her because they owed him money.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in details in their decisions therefore, I only need summarise it here.

7.The applicant was born in 1982 and had worked in Singapore as a foreign domestic helper in 2005 before going to Hong Kong to do the same work in 2007.  It was before she came to Hong Kong that her parents tried to force her to marry Iwan, a rich man from West Java, against her will.  She has never met him.  One day in 2007 she was forced by her parents to have a telephone conversation with him and he proposed marriage.  She told him she needed time to think about it and thereafter, he would call her often to ask for a reply. Later in mid-2008 when she was in Hong Kong she rejected his marriage proposal.  After that she began to receive telephone calls seven to eight times a day from a man she believed was Iwan.  There were threats of harm to her safety.  When her employment in Hong Kong was terminated, her parents asked her return to Indonesia to marry him but she refused.

8.In 2010 she received an anonymous phone call and the caller said he would ask someone to fly to Hong Kong to kill her.  Her parents did not believe she was receiving threats. In August 2013 they told her that they had borrowed Rs.100 million from Iwan and needed her to repay it on their behalf.  They told her that the only way to repay the loan was to either pay it off or marry him and she told her parents that she could do neither.

9.The adjudicator, as did the Director analysed the applicant’s claim under the following grounds;

(a)   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”);

(b)   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

(c)   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”).

10.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant confirmed to the adjudicator that she had received the Director’s decision dated 21 December 2016 which rejected her BOR 2 risk claim.  She had nothing to submit in relation to that.  The applicant had no submissions nor anything to add.  The adjudicator correctly set out the law and key legal principles applicable to the above three grounds.  He set out the applicant’s evidence, claim and his analysis of it.

11.The adjudicator found when he applied the applicant’s evidence to the grounds, she had not made out a case for non-refoulement protection.  On the applicant’s own facts, she had never met Iwan, been physically or mentally abused by him and had no reason to be afraid of him.  She said his photograph depicted him as scary.  There is no evidence to believe he had the political or financial clout to find her anywhere in Indonesia.  The adjudicator took into account that she assumed the anonymous calls received over the years from people claiming to have different identities was actually Iwan.

12.The adjudicator also took into account that the applicant did not immediately apply for protection; only until after she was arrested did she seek protection.  The adjudicator took the view that the applicant had overstayed in Hong Kong after her employment was terminated because she did not want to leave Hong Kong.  However, even on her own facts, he found the applicant was unsuccessful in showing she was at risk of persecution nor could she invoke the protection of BOR 2 or BOR 3 for the purpose of a non-refoulement protection claim. The adjudicator went further and considered Country of Origin information (“COI”) and found that even if she was at risk if she returned to Indonesia there was state protection available and internal relocation was a viable option without undue hardship.  The adjudicator confirmed the decision 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 no fault with the adjudicator’s decision.  The same applies to the decision of the Director.  The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

14.The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise she submits both decision-makers failed to properly consider and fairly deal with COI information.  Both cherry-picked COI information that resulted in an unreasonable finding.  Both failed to give adequate reasons for rejecting COI in the applicant’s favour.  Both failed to give adequate reasons for rejecting the applicable grounds.  Both failed to consider the concept of extended State acquiescence.  Both failed to consider the mental suffering she endured.  However, there are no particulars provided by the applicant for any of the grounds relied upon.

15.The adjudicator made a finding that the applicant was not at risk under any applicable ground according to the applicant’s own evidence.  He set out in his decision his findings and reasons for his findings.  He did consider state protection taking into account relevant, up-to-date and objective COI.  The applicant did not rely on the concept of extended state acquiescence.  The decision-makers did not consider this concept.  In any event, 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.  There are no merits in the grounds highlighted above.

16.I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made 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, even if I am wrong that her application is time-barred, 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