Dewi Anggraeni and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 752/2018 on BabelCite. This High Court CFI judgment was delivered on 30 April 2019.
1. The 1 st Applicant (“A1”) is a national of Indonesia. She is now aged 39 (DOB: 13 February 1980). The 2 nd Applicant (“A2”) is A1’s daughter born in Hong Kong on 29 July 2015. A2 is now 3 years old. A2 was a national of Indonesia by blood relationship with A1.
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HCAL752/2018 [2019] HKCFI 980 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 752 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The 1st Applicant (“A1”) is a national of Indonesia. She is now aged 39 (DOB: 13 February 1980). The 2nd Applicant (“A2”) is A1’s daughter born in Hong Kong on 29 July 2015. A2 is now 3 years old. A2 was a national of Indonesia by blood relationship with A1. 2.A1 said her stepmother had borrowed money from a money lender. She could not repay the money lender for her stepmother. A1 feared her stepmother and the money lender would harm her. 3.A1 claimed A2 was born outside wedlock. A2’s father was an Indian man called Mohammad Safraz (“Mohammad”). A1 feared A2 would be discriminated by her stepmother and the people in her village. 4.A1 said she was forced by her stepmother to work overseas as domestic helper. She worked in Singapore between 1996 and 2000. In October 2002, she came to Hong Kong to work. She had to remit much of her income to her stepmother. 5.In 2004, the stepmother asked A1 to remit more money to her. She threatened to hit A1 if she refused. 6.A1’s stepmother had borrowed much from a money lender. In 2008, A1 received a call from the money lender. He pressed for repayment and threatened A1. That was also their last contact. A1 had never seen that money lender. 7.In 2008, the Applicant met an Indian man Mohammad in Hong Kong. They became lovers. 8.The Applicant stopped sending money to her stepmother in late 2010. She had had no contact with her stepmother since then. 9.A1 worked in Hong Kong between 2002 and 2012. She had gone in and out of the territory. She last entered Hong Kong to work as domestic helper on 19 March 2012. Her employment contract was terminated on 7 October 2012. A1 overstayed in Hong Kong and was arrested by the police on 8 March 2014. She raised a non-refoulement claim on 11 March 2014. She claimed she would be harmed by the money lender and her stepmother. 10.On 29 July 2015, A1 gave birth to A2. 11.On 31 August 2015, A1 claimed non-refoulement protection for A2. A1 said A2 was born outside wedlock. She feared her stepmother would discriminate and hurt A2 due to that and also because of A2’s mixed ethnicity. A1 also feared the people in her village would discriminate A2. 12.A1 had not registered A2’s birth with the authorities in Indonesia but she agreed A2 was a national of Indonesia by blood relationship. 13.A1 said A2’s father Mohammad was also an asylum seeker in Hong Kong and he had already married another woman here. 14.A1 did not know if she would have state protection/assistance in Indonesia. She did not think internal relocation was viable because it was difficult for her to make a living in her country. She said she had no support there. 15.In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the claims of A1 and A2 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]. 16.On 2 May 2018, the Applicants applied for leave for judicial review. Timeline 17.Things happened in this order: –
Respondents 18.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 complaint on a rehearing basis. 19.In Form 86, the Applicants named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 20.In Re Moshsin Ali, the Court of Appeal ruled “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 Applicants cannot seek judicial review of the Director's decision. Therefore, I shall deal with their application in relation to the Board's decision only. The Director's decision 21.The Director did not accept there was any torture risk, persecution risk, BOR2 risk or BOR3 risk. He refused the Applicants’ claim with respect to all the four applicable grounds. He also found reasonable state protection and internal relocation were available to the Applicants in any event. The Board's decision 22.The Applicants appealed to the Board. The Applicant interviewed A1 on 26 January 2018. [A1 spoke on behalf of A2 because A2 was too young.] 23.The Adjudicator found A1’s allegations vague, confused, inconsistent and unconvincing. He did not consider her evidence reliable. The Adjudicator did not believe A1 and A2 faced any risk that warranted non-refoulement protection. He also found reasonable state protection was available to the Applicants in any event. 24.The Adjudicator did not accept A1 and A2 faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 23 April 2018, he refused both Applicants’ claim with respect to all the four applicable grounds. Grounds of judicial review 25.A1 complained she had no legal advice or language assistance for appeal to the Board and for judicial review. She said she did not know how her case was decided by the Director and the Adjudicator since there was no translation of documents. 26.A1 complained the Director did not explain well how he balanced his consideration of country-of-origin information ("COI") to conclude there was state protection in Indonesia. 27.A1 also complained the Adjudicator did not read the appeal bundle to her. The interpreter was there ‘only for the duration of the oral hearing and not for the process’. Court hearing 28.The hearing took place on 12 September 2018. The Applicants were in person. An Indonesian interpreter provided service in court. A1 spoke for A2 because A2 was too young. 29.A1 said a lawyer helped her to prepare Form 86 and the affirmation. All the grounds were in the documents. She had nothing to add but maintained the risks she had claimed. 30.A1 confirmed she had submitted all to the Director and the Adjudicator for their consideration of her own claim and A2’s claim. Discussion 31.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 32.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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
33.A1 raised a number of complaints in her affirmation. As said in para 20 above, I shall deal with the current application in relation to the Board's decision only. 34.A1 complained there was insufficient legal assistance. She and A2 had been represented by the Duty Lawyer Service up to the Director's decision dated 28 August 2017. 35.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] A1 failed to show how her case and A2’s case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 36.A1 raised her language problem. 37.In the current application, A1 had a lawyer to prepare Form 86 and the affirmation for her and A2. Apparently, A1 could find someone, even a lawyer, to assist her with interpretation/translation and dealing with English documents at all material times. 38.A1 complained the Adjudicator did not read the appeal bundle to her and the interpreter in the appeal hearing was there ‘only for the duration of the oral hearing and not for the process’. 39.I see no reason why the qualified interpreter in the Board hearing would not provide A1 with sufficient interpretation/translation assistance. A1’s complaint had no proof. 40.A1 complained the Director did not explain well how he balanced country-of-origin information ("COI") to conclude there was state protection in Indonesia. She did not raise the same complaint against the Adjudicator. Nevertheless, I find the Adjudicator had given clear reasons for his decision that the Applicant would not be denied of reasonable state protection in Indonesia.[9] 41.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with A1 in the screening process. A1 had been given reasonable and sufficient opportunities to state and elaborate her case and A2’s case. The Adjudicator was acquainted with the facts. He considered the Applicants’ claims carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicants’ non-refoulement claims. Conclusion 42.The Applicants’ complaints are not reasonably arguable. They have no realistic prospect of success in the sought judicial review. I therefore refuse to grant them leave for judicial review. Dated the 30th day of April 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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 284/2017 Re Paswan Shibu Lal, para 21. [9] The Board's decision, para 67. |
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