Fadya Kholyqumina Rizky v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 708/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Indonesia. She is now aged 31 (DOB: 6 March 1987).
Cited by 3 cases · Cites 4 cases
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HCAL708/2018 [2019] HKCFI 33 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 708 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3) Following:
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of Indonesia. She is now aged 31 (DOB: 6 March 1987). 2.The Applicant claimed she would be harmed or killed by her father and the wife of a rich man, who wanted to marry her. 3.The Applicant had worked as domestic helper for different employers in Hong Kong intermittently since 1999. She befriended another Indonesian domestic helper called Tina in mid-2006 in Hong Kong. 4.In October 2008, the Applicant borrowed for Tina HK$25,000 from a finance company in Hong Kong. Tina then disappeared with the money. The finance company made calls to the Applicant's employer, leading to the Applicant being dismissed in January 2009. 5.In March 2009, the finance company sent people to the Applicant's family in Indonesia to demand payment. There were some policemen accompanying the debt collectors. 6.In order to pay those people, the Applicant's father borrowed money from a rich man in Indonesia. The rich man was willing to waive repayment from the Applicant's father on condition the Applicant would marry him. The Applicant had no choice but agreed. However, she soon left Indonesia and came to Hong Kong again on 28 March 2009 under the false identity of Siti Kholipah Binti Matali (ID2) to work as domestic helper. 7.In mid-2009, the Applicant learnt from her sister in Indonesia that the wife of the rich man was aware of the intended marriage. She threatened the Applicant's family that she would kill the Applicant. 8.The Applicant did not know if her family had reported the matter to the police. Soon, she lost contact with her family. 9.When the Applicant's employment contract was terminated prematurely in May 2009, she chose to overstay here. 10.The Applicant applied for refugee status with UNHCR in August 2009. Her application was concluded in January 2010. In August 2010, she was arrested by the police under ID2. 11.In September 2010, the Applicant lodged a torture claim. The Director of Immigration (“the Director”) refused her torture claim in February 2013. The Applicant did not appeal. She was sent back to Indonesia in April 2013. 12.After she was refouled to Indonesia, the Applicant came into contact with her father again. Her father was angry that the Applicant refused to marry the rich man. They argued. The father constantly abused the Applicant and even tried to rape her. The Applicant was injured bur she did not report her father to the police. She left home finally and moved to East Java. 13.On 24 April 2014, the Applicant came to Hong Kong again to work as domestic helper. This was her last entry into the territory. This time, she used the name Fadya Kholyqumina Rizky (“ID1”). 14.The Applicant was told by her sister that the employment agency had approached their father to demand a lot of money for having arranged the Applicant to go to work in Hong Kong. The father was angry and threatened to kill the Applicant. The sister asked the Applicant not to go back to Indonesia. 15.The Applicant's last employment contract here was terminated prematurely on 27 June 2014. She overstayed in Hong Kong from 12 July 2014. Thirteen months later in August 2015, she was arrested by the police. She raised a non-refoulement claim in October 2015. 16.The Applicant said she had not sought assistance from the Indonesia authorities. She said there was corruption in her country. She was just an ordinary person and could not get protection from the authorities. 17.The Applicant also said she lacked the means and ability to relocate herself to other parts of Indonesia. 18.In the ensuing two‑tier screening process here, the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 19.On 24 April 2018, the Applicant applied for leave for judicial review. Timeline 20.Things happened in this order: –
Respondents 21.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 22.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 23.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only. The Director's decision 24.The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's non-refoulement claim with respect to all the four applicable grounds. The Board's decision 25.The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 15 February 2018. 26.The Adjudicator found the Applicant's evidence vague and indirect. There were many inconsistencies in her allegations. The Applicant had added allegations and changed her version. For example, she told the Director that her father borrowed money from the rich man to help her to repay her loan but she told the Adjudicator her father borrowed money for himself.[6] The Applicant also added that her elder brother posed threat and danger to her apart from her father.[7] 27.The Adjudicator noted the Applicant could not produce proof of her loan allegedly taken out in Hong Kong. She had used two identities to gain entry into Hong Kong to work as domestic helper and tried to conceal she had previously worked in Singapore. 28.The Adjudicator considered all the evidence and concluded the Applicant was incredible. She found the Applicant fabricated her claim in order to prolong her stay in Hong Kong. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR 2 risk or BOR 3 risk. She refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds. Grounds of judicial review 29.In her affirmation, the Applicant made complaints against the Director and the Adjudicator. As said in paragraph 23 above, I would deal with the current application in relation to the Board's decision only since the Director's decisions had gone on appeal to the Board as rehearing. 30.The Applicant said the Adjudicator failed to conduct sufficient inquiry and failed to evaluate relevant country-of-origin information ("COI"); failed to consider properly the issue of state protection; failed to take into account her psychological harm; wrongly decided her fear was low; wrongly decided she would not be subjected to any harm; misdirected herself in law; failed to give reasons for the assessment of BOR3 risk and had no sufficient basis to find there was a lack of BOR3 risk. Court hearing 31.The hearing took place on 19 July 2018. The Applicant was in person. An Indonesian interpreter provided service in court. 32.The Applicant said a friend helped her to prepare the documents. She confirmed all the grounds of judicial review were in her affirmation. She could not elaborate on those grounds. 33.The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim. Discussion 34.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 35.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
36.The Applicant complained the Adjudicator failed to consider her claim properly. 37.The Adjudicator considered the Applicant's allegations in detail. She found the Applicant's evidence vague and indirect. There were many inconsistencies in the Applicant's allegations. The Applicant had added allegations and changed her version. The Adjudicator considered all the evidence and concluded the Applicant was incredible. She found the Applicant fabricated her non-refoulement claim and thus refused the Applicant’s claim with respect to all the four applicable grounds. The Adjudicator had proper basis to come to her conclusion, which was not Wednesbury unreasonable. 38.The Adjudicator considered there was not any risk that warranted non-refoulement protection including BOR3 risk. The Adjudicator’s decision must be read as a whole. The Adjudicator had given detailed reasons of her analysis of the Applicant's case. 39.The Applicant complained the Adjudicator failed to take into account her psychological harm. As the Adjudicator disbelieved the Applicant’s claim of fear, there was really no fear or harm of any kind to be considered. 40.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant's claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated. Conclusion 41.The Applicant's complaints are not reasonably. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review. Dated 9th day of January 2019
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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] The Board's decision, paras.74-76. [7] Ibid., paras 89-93. [8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [9] CACV 219/2018 [2018] HKCA 570, para 14(1). |
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