Sulistyowati Dwi Kurnia and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 815/2017

[2018] HKCFI 2214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 815 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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The 1^st Applicant entered Hong Kong legally as a foreign domestic helper but did not leave as required by 25 January 2010.  She was arrested by the police on 18 January 2013 for overstaying and received 12 weeks’ imprisonment upon conviction on 28 January 2013.  She was discharged from prison on 14 March 2013 and made the subject of a removal order on 8 April 2013.  The 1^st Applicant submitted her non-refoulement (“NRF”) claim by way of written representation on 3 March 2014 and was released upon recognisance on 8 May 2013.  Her NRF claim form was submitted on 21 July 2015.  The 2^nd Applicant is the child of the 1^st Applicant and was born on 20 September 2016.  A NRF was submitted on his behalf on 12 January 2017.

2.The 1^st Applicant attended a screening interview on 12 January 2016.  The Director of Immigration (“the Director”) dismissed her claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 26 February 2016 and by Notice of Further Decision (re BOR 2) on 16 December 2016.  The 2^nd Applicant’s claim was considered and refused on 24 April 2017.  The 1^st Applicant appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 11 March 2016.  The adjudicator of the TCAB, Mr Bernard Whaley (“the Adjudicator”), heard the 1^st Applicant on 31 August 2017.  The Adjudicator considered their appeals on all applicable grounds including BOR 2 but refused their appeal on 8 September 2017.

3.The Applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 27 October 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicants are Indonesian nationals.  The 1^st Applicant was born on 11 November 1980 and comes from Central Java.  The 2^nd Applicant was born in Hong Kong out of wedlock.  He is in the sole care of the 1^st Applicant. The identity of the father has not been disclosed but he is of African origin. The couple are no longer together.  The 1^st Applicant originally came to Hong Kong to work as a domestic helper in order to pay off family debt. She did this until mid-2007 when she stopped remitting monies as they were being used to pay for general expenses.  According to the 1^st Applicant, the debt has since increased substantially and she was threatened by her mother with a forced marriage or prostitution if she returned to Indonesia.  After the birth of the 2^nd Applicant, it is feared that a child out of wedlock and of mixed race will be rejected by the 1^st Applicant’s family and ostracised by Indonesian society.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicants’ claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicants must establish that they have substantial grounds for believing they will be subjected to torture if returned to their home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicants must establish that they have a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to their home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under “persecution risk”, the Applicants must establish that they have a well-founded fear that there is a real chance that they will face persecution based upon race, religion, nationality or membership of a social group or political opinion if they are expelled and returned to their home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicants must establish a real risk that they will be arbitrarily deprived of his life, have a death penalty imposed upon them; or be the victim of genocide or otherwise be deprived of their rights under BOR 2.

6.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicants had established the factual basis of their claim.  The Director and Adjudicator must then assess the level of harm the Applicants say they fear.  Each ground of claim above has a relevant level of risk.  It is for the Applicants to establish that they are the subject of such risk.  Under the HKBORO, they must show substantial grounds for believing that the harm which they fear is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which they fear.

Decision and Further Decision of the Director

7.The Applicants seek to review both the Decision of the Director and the Adjudicator.  As the Applicants have already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimants and dealt with.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicants’ claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator confirmed that the 1^st Applicant had never been harmed in any way by Tri.  Prior to her leaving Indonesia to work as a domestic helper, the 1^st Applicant had a loving relationship with both her parents and there was no reason to believe they would refuse to provide her with the appropriate documentation if she were to return and seek to establish her citizenship.  It was only when she heard that her salary was being used to pay for her sister’s wedding that the relationship started to deteriorate.  Later, when she found out that the loan had increased significantly, the 1^st Applicant ceased all contact with her family.

9.Nevertheless, it was for the 1^st Applicant to show on her own behalf and that of her child, that there were substantial grounds for believing that there would be a real risk that she or he would be tortured, killed or seriously harmed if returned to Indonesia.  The 1^st Applicant had no evidence of any such risk to mothers and their illegitimate children.  It was possible she would be able to establish the relevant documentary evidence to allow her to remain in Indonesia and it was open to her to do that in a place other than her home village.

Leave to apply for judicial review

10.Judicial review is not a rehearing of the merits of the Applicants’ original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicants must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with their application in order to obtain leave to judicially review them.

Grounds of review

11.There were no grounds of review.  The Applicants ask for a re-hearing of their appeal.  They have not complained of any procedural irregularity, unfairness or unreasonableness.  The Applicants have a duty to state the grounds of their intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12.Despite the fact that the Applicants have not submitted any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure by either the Director or Adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicants, the Adjudicator engaged in a joint endeavour with the 1^st Applicant (on behalf of herself and her child) and considered all relevant criteria; gave the 1^st Applicant a reasonable opportunity to state her case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

13.In my judgement, there is no reasonably arguable basis upon which the Applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 11^th day of December 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

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 11/12/2018

Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3282/16/3/87/I274
USM 7093/17/5/99/1704

Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9001013/16 (formerly RBCZ 1680/14)
QA T/C 3438/16 (formerly RBCZ 13661/16)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)