Irmawati Bt Zakaria Hatta and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1662/2018

[2020] HKCFI 1349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1662 OF 2018

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 Applicants 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 Applicants:

Procedural history

1.The 1^st applicant entered Hong Kong legally on 27 October 2014, as a foreign domestic helper (“FDH”).  Her FDH contract was terminated prematurely and the 1^st applicant surrendered to the Immigration Department on 13 January 2015.  She submitted a non‑refoulement claim by way of written representation on 23 February 2015 and was released upon recognisance on 23 March 2015.  Thereafter, she met and married her husband who is a Nigerian national and she gave birth to their son, the 2^nd applicant, on 22 September 2016.  Their non‑refoulement claim forms were submitted on 19 December 2016.

2.The 1^st applicant attended a screening interview on 3 January 2017.  The Director of Immigration (“the Director”) dismissed their claim on all grounds by Notice of Decision (“the Decision”) on 5 January 2018.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Evan Ruth (“the Adjudicator”), heard their appeal on 26 April 2018.  The Adjudicator considered their appeal on all applicable grounds and refused their appeal on 12 July 2018.

3.The applicants filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 August 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The 1^st applicant is an Indonesian national and a Muslim.  She was born on 5 November 1985, in Lapilopok.  The 1^st applicant had 12 years of formal education and prior to coming to Hong Kong, she worked as a FDH in Saudi Arabia between 2008 and 2013.  It was whilst she was working in Saudi Arabia, that the 1^st applicant’s parents obtained a loan in the name of the 1^st applicant.  It was in the sum of 3 million Indonesian Rupiah (approximately HK$1,500).  The terms of the loan suggested to the Director made no sense and will not be repeated here.   The loan was secured on land owned by the 1^st applicant and she remitted her total salary to Indonesia in order to repay the interest upon the loan even though the amount was insufficient to do so.  The 1^st applicant returned to Indonesia in 2013 but as the loan was still outstanding she came to Hong Kong to work.  In order to do so, she entered into an agreement to pay the employment agency, which she has defaulted upon as her second contract was terminated prematurely.  This also resulted in her being unable to pay any more monies upon the Indonesian loan and she was told by her father that if she returned to Indonesia the creditor would kill her.  As a result, she remained in Hong Kong and overstayed.  In the intervening period, the creditor repossessed the land and the family home but monies are still outstanding.  Since that date, according to the 1^st applicant, the creditor has rung her more than once and threatened to kill her.  The 1^st applicant maintains that at no time has she known exactly how much is owed nor how much interest is to be paid as both loans were taken out by her father in her name.

5.The 1^st applicant met her husband in mid‑2015.  He is a Nigerian national and they married in a mosque in Hong Kong but the marriage has not been registered.  They have a child of that union, who is the 2^nd applicant, and who was born in Hong Kong on 22 September 2016.  Since his birth, the 1^st applicant has been told that whilst her parents accepted her marriage, other members of the family and local community did not.  The 1^st applicant fears that her son will be discriminated against.

The non-refoulement claim

6.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 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 (“the 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 their lives, have a death penalty imposed upon them; or be the victim of genocide or otherwise be deprived of their rights under BOR 2.

7.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicants have established the factual basis of their claim. The Director and the 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 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.  Not surprisingly the Adjudicator found the factual basis of the applicants’ claim to be sparse and incoherent.  He came to the conclusion the allegations in respect of the loan shark were a total fabrication.  What remained was therefore her situation as an Indonesian Muslim woman married to a Nigerian man with a mixed race child whom, she fears, will face discrimination if returned to Indonesia.  However, a closer assessment of the current state of the law in Indonesia indicated that as a married woman with a child born within wedlock, the 1^st applicant would have a number of state protections including the ability to sponsor her husband for Indonesian residency.  As persecution risk was the only remaining head of claim likely to be applicable to the applicants, the Adjudicator considered it in some detail but came to the conclusion that whatever discrimination they may face was unlikely to amount to persecution for the purposes of the claim.

Leave to apply for judicial review

9.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 decision of 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

10.There were no grounds of review.  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 show 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

11.Despite the fact that the applicants did not submit any grounds of review, I have considered the papers carefully.  I have looked in particular inter alia, into the suggestion that the applicant may, in some way, be subject to persecution if refouled to Indonesia as a result of her mixed race marriage but this issue was identified and analysed fairly by the Adjudicator against the known COI.  After considering the decision and the hearing, I have not found any error of law or procedure.  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 applicants and considered all relevant criteria; gave the applicants a reasonable opportunity to state their 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.

12.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 they were to be granted leave.  I therefore refuse leave for judicial review.

Dated the 26^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