Sugiarti Yayuk and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 263/2019 on BabelCite. This High Court CFI judgment.
1. This is Ms Yauk-Sugiarti’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 December 2018 (the “Decision”). She is the sole applicant named in the Form 86. The Decision which she sought judicial review was made against her as the 1 st Appellant/Petitioner and her infant son whom she represented as the 2 nd Appellant/Petitioner in the appeal before the Board. Accord
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HCAL 263/2019 [2022] HKCFI 1125 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 263 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 To:
Observations for the Applicant: Introduction 1.This is Ms Yauk-Sugiarti’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 December 2018 (the “Decision”). She is the sole applicant named in the Form 86. The Decision which she sought judicial review was made against her as the 1st Appellant/Petitioner and her infant son whom she represented as the 2nd Appellant/Petitioner in the appeal before the Board. Accordingly, this application is deemed as if it were made by her in the same capacity. Leave is therefore granted to amend the application by naming her as the 1st Applicant and joining her son as the 2nd Applicant represented by her. 2.The Director of Immigration (the “Director”) is named as one of the proposed respondents in the Form 86, but no relief is sought against his decision. In the context of the Applicant’s application, the only relevant decision made by the Director is the Notice of Decision dated 26 March 2018 (the “Notice”) which is the subject matter of the Board’s Decision. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. The Notice is not a subject matter of this application. 3.The 1st Applicant did not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing. 4.The 1st Applicant is an Indonesian national, now aged 37. She is married in Indonesia but is separated from her husband. She has one son, now aged 17 living in Indonesia with her parents. 5.The 1st Applicant had entered Hong Kong previously to take up employment as a foreign domestic helper. She last arrived in Hong Kong on 13 August 2015. She became an over-stayer since 8 April 2016 when her contract of employment was prematurely terminated. She surrendered to the Immigration Department and subsequently lodged a non-refoulement claim on 17 May 2017. She had developed a relationship with an asylum seeker from Bangladesh and gave birth to the 2nd Applicant on 1 August 2017. The man had left her. The 1st Applicant is now a single parent with primary responsibility for the care of the 2nd Applicant. 6.In due course, the Applicants’ non-refoulement claims were assessed on all applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[3]; BOR 2 Risk[4]; BOR 3 Risk[5] and Persecution Risk[6] grounds. By a Notice of Decision dated 26 March 2018, the Director of Immigration (the “Director”) rejected their claims. They appealed to the Board against the decision of the Director in the Notice. Their appeal was dismissed by the Board’s Decision. They now sought leave to apply for judicial review of that Decision. The Applicants’ case 7.The following is an account of the Applicants’ case based mainly on the information in her non-refoulement claim form (“NCF”) which was prepared by the 1st applicant with assistance of the Duty Lawyer Service and the record of her screening interview by an immigration officer. In gist, the Applicants’ claim is based on the 1st Applicant’s fear that she will be harmed or killed by her sister (Lilik) and her sister’s husband for failing to repay them the money borrowed for fixing the roof of their parents’ house and for her disapproval of their illegal second marriage, if she returns to Indonesia. 8.The 1st Applicant had worked as a foreign domestic helper in Taiwan from 2008 to 2012 before working in Hong Kong in 2013. In 2015, she was informed that the roof of her parents’ house was leaking and needed repairs. She asked Lilik, to arrange the repairs and promised to pay her back. Subsequently, Lilik completed the work and informed her that the cost of repairs was 34.2 million Indonesia Rupiah (“IDR”). She did not have that much money and promised to pay her back as soon as possible. 9.A few months later, the 1st Applicant’s parents decided to distribute their land to the 1st Applicant and her three siblings. The 1st Applicant gave her ¼ share of the land to Lilik to settle the cost of repairs. But Lilik claimed that it was 10 million IDR short. The 1st Applicant offered to pay by instalments but Lilik disagreed. She and Lilik had a heated argument over the phone which ended with Lilik threatening that she or her husband would kill her if she returned to Indonesia. The 1st Applicant sought mediation from her parents, but they too insisted that she should repay as quickly as possible and not make any trouble. Devastated by her parents’ unwillingness to support her, she changed her telephone number and cut off contact with them and her siblings. She last contacted her son in 2018. 10.The 1st Applicant also had a clash with Lilik over the 1st Applicant’s opposition to Lilik’s second marriage. She now fears that Lilik and her brother-in-law will harm her if she returns to Indonesia. The finding of the Board 11.Despite some doubts in her evidence, the Board felt it was unable to confidently dismiss the Applicants’ claims as being incredible and afforded her the benefit of the doubt. It accepted the core aspects of the 1st Applicant’s case about past events in Indonesia and Hong Kong. However, given the circumstances of the case, including the lack of information about the current or recent circumstances of Lilik and her husband, the amount owed, and whether the debt had been discharged by her parents or other siblings, the Board had concerns about the degree of confidence it could have in finding that there are substantial grounds to believe that the Applicants face a real risk of being subjected to mistreatment that would constitute torture for the purpose of Part VIIC of the Immigration Ordinance, if they return to Indonesia. Furthermore, the dispute between the 1st Applicant and Lilik and her husband is a dispute between private individuals and there is no evidence that any harm would be inflicted by, or at the instigation, or with the consent or acquiescence of a public official or person acting in an official capacity. The Board was also satisfied from Country of Origin Information (“COI”) that a reasonable system of state protection is available to the Applicants in the event they sought assistance and protection from the feared harm and that internal relocation is a viable option to avoid the risk. Hence, the Board found there are no substantial grounds to believe that the Applicants face a real risk of being subjected to torture on their return to Indonesia. Their claims under the Torture Risk ground failed. 12.For similar reasons, the Board found there are no substantial grounds to believe the Applicants face a real risk of being inflicted with or suffering serious harm that would constitute cruel, inhuman, degrading treatment or punishment if they return to Indonesia in the reasonably foreseeable future; and even if they would, the risk could be prevented or avoided by state protection and internal relocation. Their claims under BOR 3 Risk ground failed. 13.Likewise, the Board found there are no substantial grounds to believe that the Applicants would face a real risk of being persecuted by Lilik or her husband. Furthermore, as the feared risk arose out of a debt dispute between siblings, any harm which would be caused to the Applicants would not be motivated for one or more of the reasons protected by the 1951 Convention relating to the status of Refugees. The risk and harm fall outside the protection of the Persecution Risk ground. 14.The Applicants have not committed or been charged with any criminal offence in Indonesia. There is no risk that they will be arbitrarily deprived of their right to life by the government on their return nor does the evidence and information before the Board indicate or suggest that the humanitarian conditions in Indonesia were so dire to render refoulement a violation of the Applicants’ right to life. Hence, the Board refused their claim under BOR 2 Risk ground. Grounds for judicial review 15.The 1st Applicant did not put forward any grounds for judicial review in the Form 86 or in her supporting affirmation. She had been invited by the Court via its letter dated 28 May 2021 to file submissions and to advise the Court of her first language and change of address. Other than informing the Court of her change of address, the 1st Applicant did respond to that letter. 16.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicants’ complaint is that they disagree with the finding of the Board that it is safe for them to return to Indonesia. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to Indonesia. Conclusion 17.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7]. 18.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board accepted the core aspects of the Applicants’ case and assessed their fear and risk on the basis of the case as they asserted. It was on that basis that the Board found that they have failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. 19.For the above reasons, leave to apply for judicial review was refused. Dated 21st day of April 2022.
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] Section 37ZR of the Immigration Ordinance, Cap. 115 [3] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [6] 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 [7] [2018] HKCA 524 at [14(1)] |
Cases cited in this judgment