Anada Igah Juita Ra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2767/2018

[2021] HKCFI 584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2767 OF 2018

BETWEEN

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 oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

2.This applicant applies for leave to apply for judicial review of the Decision dated 5 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

4.The applicant is an Indonesian national. She came to Hong Kong as a domestic helper on 15 August 2012.  Her employment contract was prematurely terminated, but she stayed in Hong Kong without authority.  On 21 July 2014, she was arrested by police and referred to the Immigration Department.  She lodged her non-refoulement claim whilst she was being detained in the Castle Peak Bay Immigration Centre.

5.The applicant claimed that, if refouled, she would be harmed or killed by her father and the new creditor with whom she refused to marry.  Her father had borrowed a loan from the first creditor.  He was unable to pay and asked her to marry this creditor’s son.  She complied with this request.  She gave birth to a son.  But her husband was looking for a daughter.  They had disputes and her husband abused her.  Her father borrowed another loan, which he could not repay.  He asked her to marry the new creditor, who is a Christian and at the same age of her father.  She refused to marry this new creditor.  Her father was angry with her and threatened to kill her.  The new creditor also threatened to kill her for refusing marrying him.  At last, she came to Hong Kong, leaving her son with her mother in Indonesia.  Details of the incidents are contained in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

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”).

7.By Notice of Decision dated 28 February 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that there was no substantial ground to believe that there would be any real risk of her being harmed or killed by her father or the new creditor if she returned to Indonesia [13-19]; that state protection would be available to her [20-27] and that internal relocation was an option open to her [28].  Based upon the finding of the facts, the Director rejected her claim on BOR 3 risk [36], BOR2 risk [38], Persecution risk [44] and Torture risk [48].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and the adjudicator decided to hold a meeting with her in order to verify some facts with her.  The hearing date is 8 June 2018. However, she did not attend the hearing.  The Board had ascertained that notice for her to attend the hearing was duly served.  The Board decided to determine her appeal on the materials in her absence and informed her that she was entitled to provide the Board with a written explanation of her failure to attend the hearing together with any supporting documentary evidence.   The applicant did not response to the Board’s letter.

9.The Board decided to determine the appeal by referring to the substantive material before the Board in accordance with sub-clause 15(1) of Schedule 1A and paragraph 11.2 of the Petition Guide and subject to sub-clause 15(2) of Schedule 1A and paragraphs 11.14 and 11.15 of the Petition Guide.

10.The Board considered that because of the absence of the applicant, it did not have the opportunity of clarifying the facts with her. The Board was therefore unable to ascertain the credibility of her assertions included in the hearing bundle. In particular, the Board was unable to determine how she would be at risk of harm from her father and the second creditor if she returned to Indonesia.  The Board found that the applicant’s application for non-refoulement protection on all applicable grounds had not been proven. It therefore dismissed her appeal and affirmed the Director’s Decision [21].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 5 December 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that she was not satisfied with the Board’s Decision which was unreasonable unfair.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.Under section 18, Schedule 1A Torture Claims Appeal Board, of the Ordinance, the Board has discretion to consider the evidence that was before an immigration officer:

18. Evidence considered by Appeal Board in an appeal under section 37ZR

(1)  In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—

(a)  the same evidence that was before an immigration officer; and

(b)  if subsection (2) applies, evidence that was not before an immigration officer.

14.In AM v Director of Immigration & Another (unreported, HCAL 102/2012, McWalters J., 20 November 2013), the court held that a hearing before the Board is, in fact, a rehearing of the applicant’s case:

“30. A rehearing can take different forms. It can take place just on the papers or it can involve the calling of witnesses. Given the fact that it is clearly anticipated that the Adjudicator is expected to resolve issues of credibility and for this purpose should conduct an oral hearing, there will be occasions when the adjudication process will require the calling of witnesses and the taking of evidence. But, this will not always be the case. The process can best be described as a rehearing of the claim at the end of which the Adjudicator makes his own determination in respect of it. … …”

15.The Board has to rely upon section 18 of Schedule 1A of the Ordinance for receiving evidence at the hearing.

16.In this case, although the Board has not expressed clearly that it had relied upon the evidence before the immigration officer. However, it had stated at the end of its Decision that the NOD [Notice of Decision] of 28 February 2017 was confirmed. This can be taken that the Board had considered the Director’s Decision and, having considered the evidence therein stated, agreed with the Director’s findings of the facts.

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

“13.… … Assessment of evidence and 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.”

18.The applicant’s ground in support of her application is her opinion without any evidence or specifics. She has not even explained why she was absent on the hearing date before the Board.

19.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

21.I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 10^th day of March 2021

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