Zoraydah and Others v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 663/2019

[2019] HKCFI 2960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 663 of 2019

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The applicants apply for leave to apply for judicial review of the Decision dated 10 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

The applicants

2.The first applicant is the mother of the second and the third applicants. This is their joint application. The first applicant’s facts and evidence will cover the other applicants. Therefore, in the paragraphs below, unless otherwise stated, the first applicant’s evidence and facts will apply to the other applicants as well.

3.The applicant is an Indonesian national. She came to Hong Kong as a domestic helper on 20 May 2007. Her employment contract was terminated prematurely on 23 November 2007. She overstayed since 8 December 2007. On 10 December 2007, she surrendered to the Immigration Department and lodged her refugee clam at UNHCR Hong Kong office on 7 December 2007. On 20 January 2008, she gave birth to the second applicant. On 26 August 2009, she gave birth to the third applicant.

4.She claimed that if refouled, she feared that she would be subjected to torture by the Village Chief, Narko and his subordinates because she had complained to the Sub-District Office against him for accepting bribe from her cousin to obtain a piece of land, which belonged to her. Her cousin, Sirus is the son of her aunt. The land was left by her grandfather to her mother and her aunt. Her mother had purchased her aunt’s share. Sirus took over the land. The piece of land was subsequently sold by Sirus. But she did not get any money. Because of her complaint, the Village Chief was very angry with her.

The Director’s Decision

5.The applicants had made their torture claim to the Director similar to Part VIIC of the Immigration Ordinance, Cap. 115 and the Director rejected their application. On appeal, the Petition Team of Secretary Bureau, the predecessor of the Torture Claims Appeal Board, refused their appeal by Decision dated 23 April 2012. The Director considered their applications in relation to the following risks:

a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By Notice of Decision dated 30 April 2018 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated.  The Director found that there were no substantial grounds for believing that the applicants would be subjected to any real and substantiated risk of being harmed by Narko and his subordinates as asserted upon their return to Indonesia [26]; that state protection was available to them [27] and internal relocation was an option open to them [29].

The Board’s Decision

7.The applicants appealed to the Board against the Director’s Decision and the first applicant attended a hearing before the Adjudicator on 14 November 2018.

8.By the Board’s Decision, the Board rejected their appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, found that internal relocation was possible, even for the second and the third applicants [80-82 & 105]; that she did not come to seek protection for fear of her cousin or the Village Chief [88]; that the property dispute would not give rise to the threat of serious or significant harm [103] and that she did not have a well-found fear of being persecuted in Indonesia [110].

Application for leave to apply for judicial review

10.The applicants filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicants relied upon the grounds below in support of their application.

1. Procedural impropriety/unfairness: that the Adjudicator failed to make sufficient research and inquiry into the Country of Origin Information (“COI”); that he failed to call for psychological and psychiatric evaluations and reports; that he applied the incorrect standard of proof and insufficient legal representation; that the hearing bundle was given to her shortly before the appeal hearing without translation and the BOR 2 risk was not screened by a judge or the Immigration Department.

2. Irrationality: that the Adjudicator cherry picked the COI and relied upon outdated information; that he failed to make findings of whether there existed consistent pattern of gross, flagrant or mass violation of human rights in Indonesia; that he failed to assess state protection in Indonesia and he took into consideration and put weight on irrelevant considerations or considered incorrect considerations. The Board also failed to consider the Hong Kong Bill of Rights Ordinance in relation to children’s rights.

DISCUSSION

12.The 1^st applicant appeared before me and she confirmed that she was able to express her case freely before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decision to her and the interpreter of the Board had explained the Board’s Decision to her.

13.I put the Board’s findings to her and asked her if she had any comments on them. She said that she had no comments.

14.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage.

15.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held

“13. (1) … …Assessment of evidence and COI mate rials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

16.The grounds above are either opinions without evidence or particulars or irrelevant to the Board’s findings, which she confirmed that she had no comments.

17.The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

18.Since the applicants’ application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant them leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their application.

Dated the 6^th day of December 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