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

HCAL 2800/2018

[2020] HKCFI 1125

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2800 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 K.W. Lung:

1.   Leave to apply for Judicial Review be refused; and

2.   The 1^st to 3^rd Applicants’ own costs be taxed in accordance with Legal Aid Regulations.

Observations for the Applicant:

THE APPLICATION

1.This is the applicants’ joint application for leave for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

2.The applicants are legally aided, represented by counsel, Denise Souza, instructed by Messrs. Vidler & Company.

The applicants

3.The first applicant is a national of Indonesia. The second and the third applicants are her daughters born in Hong Kong. They are minors, respectively aged seven and two. This is their joint application. I shall therefore refer to the first applicant’s case and evidence, which will cover the other applicants, unless otherwise stated.

4.The first applicant came to Hong Kong as a domestic helper between 2003 to 2010. Her contract terminated on 21 June 2010. On 6 July 2010, she surrendered to the Immigration Department. On 31 August 2011, she lodged a “torture claim” under Articles 1 and 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which is similar in nature to that provided under Part VIIC of the Immigration Ordinance (“the Ordinance”). After the second applicant and the third applicant were given birth, the first applicant raised a torture claim for them respectively. All the applications for torture claim were dismissed by the Director. They filed appeals on 11 August 2015 (for the first and the second applicants) and 10 January 2018 for the third applicant.

5.On 7 April 2014, the first applicant was arrested by the immigration officers for various offences, viz. taking up illegal employment, for possession of forged ID cards, for copying false instruments. She was convicted and sentenced to imprisonment. Whilst in prison, on 16 May 2014, she lodged non-refoulement on BOR 2 risk, BOR 3 risk and Persecution risk respectively as described below.

6.In support of her claim, she claimed that if refouled, she would be harmed or mistreated by her husband, who had subjected her to violent physical abuse whilst she was living in Indonesia. She is now at increased risk of serious harm or death from her husband and others in Indonesia because she has, since coming to Hong Kong, had two children with another man (i.e. the 2^nd and 3^rd applicants), whilst married to her husband who resides in Indonesia. She has also converted from Islam to Christianity. As a result, the applicant would be exposed to severe discrimination, violence, penalty, and/or death. She would also face significant social stigma and discrimination and be unable to survive in Indonesia.

The Director’s Decisions

7.The Director considered the applications in relation to the following risks:

a.     risk of torture under Part VIIC of the Ordinance (“Torture risk”) (for the third applicant only, but not the first and the second applicant as they had applied for protection under this risk before and their applications were dismissed by the Director; yet they did not appeal);

b.     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”);

c.     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

d.     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”).

8.By Notices of Decision respectively dated 31 July 2015 (for the first and the second applicants), 6 February 2017 and 4 January 2018 (for the third applicant), collectively called “the Director’s Decisions”, the Director rejected their claims for the reason that their respective claims were not substantiated.

The Board’s Decision

9.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 26 July 2018. The parties were legally represented. The applicants were represented by Duty Lawyer Mr. Anthony P.k. Loong; the Director was represented by Senior Government Counsel Mr, Suen Sze-yick together with Immigration Officer Miss Leung Wing-kwan.

10.By Decision dated 21 September 2018 (“the Board’s Decision”), the Board rejected the applicants’ appeal and confirmed the Director’s Decisions.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to its conclusion refusing her appeal and confirmed the Director’s Decisions. I shall set out its decisions below.

a.     For the risk of torture, the applicant did not suffer severe pain and suffering [10].

b.     The government was not involved [11].

c.     There was no evidence that severe pain and suffering would happen in future [12].

d.     Internal relocation is an option open to her [14 & 15].

e.     The Adjudicator did not accept that her husband would, after a period of over 10 years out of contact with her, still be interested in her and would spend expense and efforts on locating her if she returned to Indonesia. Her fear about other villagers would harm her knowing that she was an apostate was only speculative without evidence in support of it [18].

f.     She could live with her daughters in other places in Indonesia without undue hardship [18].

g.     BOR 3 risk failed because the applicant had not suffered severe injury or serious harm within the context of BOR 3 and there was no evidence that she would suffer such harm in future; the Country of Origin Information (“COI”) showed that state protection would be available and relocation would be open to her [23 & 24].

h.     For the same reasons above, BOR 2 risk failed too [25].

i.     Persecution risk failed because there was no evidence that the applicant had suffered severe ill-treatment or serious harm within the context of the Convention and that there was state protection as shown by the COI and that her husband and other villagers would not amount to the meaning of “populace” of Indonesia [30].

j.     After studying the whole story and after listening to the applicant at the oral hearing, the Adjudicator found her story unreliable for the reasons that she had committed offences in Hong Kong and she did not seek protection for over two years after her arrival in Hong Kong (section 37ZD(3) of the Ordinance) [31-34].

Application for leave to apply for judicial review

12.In her Amended Form 86, the applicant applied for leave to apply for judicial review of the Board’s Decision upon the grounds as follows:

1.     The Adjudicator failed to consider the impact of return on the 1^st Applicant’s young children, the 2^nd and 3^rd Applicants, which amounts to a failure to take into account relevant considerations and/or Wednesbury unreasonable (“Ground 1”);

2.     The Adjudicator failed properly to assess the country conditions in Indonesia, which amounts to a failure to give adequate reasons and/or is Wednesbury unreasonable (“Ground 2”); and

3.     The Adjudicator erred in his finding that the Applicants would have adequate state protection if returned to Indonesia, and failed properly to assess the Applicants’ claims on all grounds of non-refoulement protection as a result (“Ground 3”).

DISCUSSION

13.I shall highlight the relevant legal principles for the discussion below.

14.The role of the Board is supervisory. TK v Michael Jenkins Esq (unreported, HCAL 126/2010, Lam J, 21 October 2011at §26), reference being made to the decision of the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §45.

15.But the Board has wider power to review the merits, make investigation and consider the evidence obtained by the Director under section 18, Schedule 1A of the Ordinance TK v Jenkins & Another [2013] 1 HKC 526, Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-refoulement Claims Petition Office & Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018 §16.

16.In Bah Mohamed Bachir v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCA 462, 18 April 2019, the Court of Appeal held:

“15.     The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information (“COI”) materials 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.”

17.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review.

18.Ground (1) can be disposed of by considering the issues below.

a.     In section 2 of the Notice of Appeal, the applicant was required to set out all the grounds of the appeal, giving reasons in support of those grounds, with reference to the specific paragraphs of the Director’s Decision, giving as many details as possible.

b.     The issues under this ground were not spelt out in the Notice of Appeal.

c.     However, these issues were discussed at length in the Director’s Decision dated 31 July 2015. See §§20, 21 and 25, in which the Director had considered that state protection was available to lower the level of risk. Paragraph 28 further stated that children born out of legal wedlock from an Indonesian mother is considered as a citizen of the Republic of Indonesia who enjoys the rights as an Indonesian citizen and protection from the Indonesian government. The issue of the daughters being subjected to be separated from the parent and given away or be sold and held in servitude was considered by the Director and was rejected. See §28.

d.     Since these issues were not raised in the Notice of Appeal, the applicant cannot complain that the Adjudicator had failed to take them into consideration.

e.     This ground fails.

19.Ground (2) can be disposed of by considering the issues below.

a.     Again, the issue of COI was not raised in the Notice of Appeal. In the Director’s Decision, the immigration officer had already made reference to the various COIs such as the Asian News, the Us Department of State 2013 Report, the Research & Information Services Section of the Refugee Review Tribunal, the US Department of State 2014 Report etc. All these were not disputed by the applicant before the Board.

b.     Having considered the Director’s decision relating to the COI, there is nothing that cast any doubt on the authority or reliability of the information. This ground fails too.

20.Ground (3) is a general statement or an opinion without evidence in support. The Board had considered the Director’s Decision and confirmed it. Below are the Director’s consideration.

a.     The Director had made a rather prudent and detailed research in the COI in relation to persons’ conversion between recognized religious groups being permitted by law in Indonesia [22]. Indonesian government has decided to protect the religious freedom of all Indonesian citizens. A Christian woman was appointed governor of Jakarta [23]. The government of Indonesia has announced the drafting of a new bill that would serve the legal grounds to provide protection to adherents of all religious in the country [24].

b.     On the issue of state protection, the Director had also made reference to the COI extensively. He had considered the applicant’s view that the police were corrupt and despite the arrest and conviction of many high-profile and high-ranking officials, there was a widespread domestic and international perception and corruption remained endemic [27]. He further considered that objective COI showed that Indonesian government maintained a structured police system and there are channels for complaints against corruption, rejecting her allegation that her daughters would be a slaves without hope or a future as they are regarded as Indonesian citizens under the law [28]. The applicant and her daughters should have reasonable state protection [28(iv)].

c.     The applicant had not even attempted to seek state protection in Indonesia [25].

d.     The Director had also considered internal relocation alternative for the applicants and held the view that this alternative was available to the first applicant [29]. The Indonesian law permits internal relocation [30]

21.The applicants fail to show that they have any reasonable chance of success in their proposed joint judicial review.

CONCLUSION

22.Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their joint application.

23.The applicant’s own costs be taxed in accordance with Legal Aid Regulations.

Dated the 12^th day of June 2020

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