Robiah and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2930/2018 on BabelCite. This High Court CFI judgment.
1. This is the Applicants’ 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 14 December 2018 (the “Decision”).
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HCAL 2930/2018 [2022] HKCFI 2061 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2930 of 2018
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: Leave to apply for Judicial Review refused. Observations for the Applicant (Order by Deputy High Court Judge To): Introduction 1.This is the Applicants’ 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 14 December 2018 (the “Decision”). 2.The Applicants are nationals of Indonesia, now aged 44 and 4. As the 2nd Applicant is a minor, the 1st Applicant who represented her had been advised by letter dated 4 January 2022 to seek legal representation whether by the Duty Lawyer Service or private solicitors. Six months have since lapsed. They did not respond. Their legal aid application were refused by the Director of Legal Aid on 2 March 2022. The Applicants had not requested 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. 3.The 1st Applicant last entered Hong Kong on 17 December 2006 to work as a foreign domestic helper. Her contract was prematurely terminated on 30 May 2008 but she did not leave Hong Kong. She overstayed and was arrested on 28 July 2014. 4.On 12 January 2015, the 1st Applicant raised a non-refoulement claim for herself. She subsequently gave birth to the 2nd Applicant on 1 September 2017 and raised a non-refoulement claim on her behalf on 26 September 2017. 5.In due course, their non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By a Notice of Decision dated 5 January 2018, the Director rejected their claims under all four applicable grounds. Their appeal against the Notice was dismissed by the Decision of the Board on 14 December 2018. 6.On 20 December 2018, the 1st Applicant applied on her own behalf for leave to apply for judicial review of the Decision of the Board. On 28 July 2020, Deputy High Court Judge K.W. Lung granted leave for her daughter to be joined as the 2nd Applicant in this application. The Applicants’ case 7.The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the basis of the Applicants’ claim is their fear of harm and discrimination arising from the fact that 1st Applicant had contracted HIV. Initially, the 1st Applicant had also advanced a claim based on her sexual orientation, but that claim was abandoned at the hearing of the appeal before the Board on 3 December 2018. In view of the abandonment, the facts relied on by the 1st Applicant in respect of that part of her claim will not be mentioned here. 8.The 1st Applicant was born in Province Central Java of Indonesia. She had 12 years of education up to senior secondary level and 10 years of working experience as a domestic helper in Singapore and Hong Kong. The 2nd Applicant was born outside of wedlock in Hong Kong. 9.The 1st Applicant arrived in Hong Kong in 2002 to work as a foreign domestic helper. She met her ex-girlfriend in around 2004. She was drunk and had sex with a stranger in 2007 when she was left behind in a club by her girlfriend after a dispute. She was diagnosed with HIV in June 2008. 10.After the diagnosis, she could not renew her employment contract in Hong Kong. She informed her mother about the diagnosis. Her mother told her not to return to Indonesia as her HIV infection would be a disgrace, curse and great shame to her family owing to its religious views. Her mother disowned her and her father threatened to kill her. She last contacted her family members in 2010. 11.In 2015, the 1st Applicant developed a relationship with a man who became the 2nd Applicant’s father. She gave birth to the 2nd Applicant in September 2017. Her relationship with the 2nd Applicant’s father ended in November 2017, but they maintained contact as friends. The 2nd Applicant’s father sometimes visited them and supported them financially. The 1st Applicant is afraid of returning to Indonesia because she believes the doctors in Indonesia cannot keep a secret. She is concerned that she will be killed for having HIV. The 2nd Applicant is not HIV positive. However, the 1st Applicant is concerned that her daughter would be rejected by schools and discriminated against for having a parent with AIDS. The finding of the Board 12.At the hearing before the Board, the 1st Applicant produced a number of articles and YouTube videos about children born by HIV-positive parents being refused education by schools. She claimed that she was attracted to men and that she was scared of returning to Indonesia because of her HIV condition and not because of her previous homosexual orientation. Hence, she abandoned that part of her claim based on her homosexual orientation. 13.The Board accepted the 1st Applicant was HIV positive. It accepted that “[s]tigmatization and discrimination against persons with HIV/AIDS were pervasive” and that HIV patients in Indonesia were viewed as engaging in behaviours that people often lie about, such as visiting a sex worker, cheating on their spouse or injecting drugs[5]. 14.However, the Board noted from the available Country of Origin Information (“COI”) that a wide range of government and non-government services are available to people with AIDS and their children. The Indonesian Ministry of Social Affairs had implemented various measures to help these families, including conditional cash transfer programs and classes on parenting skills. 15.The 1st Applicant was asked to comment on the COI. She agreed that AIDS medicine and treatment is freely available in Indonesia but quoted two incidents where a HIV-positive non-refoulement claimant died after being repatriated back to their home countries. In one case, an Indonesian worker died in 2015 after his repatriation. The cause of death was possibly due to his already severe condition before or at the time of his repatriation. In another case, a Nepalese claimant committed suicide after being repatriated to Nepal. 16.The Board considered the 1st Applicant’s condition was apparently not as severe as the Indonesian worker mentioned above. It also noted that the Indonesian government has taken steps to improve its medical facilities and to end stigmatism against HIV-positive people. The Board did not accept that there was a particularly serious risk of the 1st Applicant’s conditions being divulged by the medical professionals. 17.After considering her personal circumstances and the available information, the Board concluded that the 1st Applicant will be able to access free medication, treatment and check-ups upon returning to Indonesia and that the current treatment would provide an opportunity for children and people with HIV to “live long and grow”. 18.As for the alleged threats from her family, the Board found the 1st Applicant had not suffered any harm from them. While the Applicant’s family may scold at her or reject her, such ill-treatment would not amount to any of the proscribed harms protected under the USM. Besides, more than eight years had passed since her last contact with them. Any risk of harm from her family would be low. 19.The Board found there was no reason that the 1st Applicant would volunteer to tell others about her conditions as she considered it her private affair. Even if others find out about her condition, the possible discrimination or stigmatism the two Applicants may face would not give rise to any of the proscribed harms protected under the USM. 20.The Board did not accept that the 2nd Applicant would be denied entry to schools. It noted that divorces, illegitimate and mixed children or children born outside wedlock are becoming more common and there was no credible evidence to suggest that the discrimination or stigmatization against these children would amount to any of the proscribed harms protected under the USM. 21.The 1st Applicant has had 12 years of education and could speak and write Indonesian language and English language. It would not be unreasonable to expect her to relocate to other parts of the country, such as Jakarta or one of the urban areas in Indonesia. The Board noted that a larger number of HIV-positive people resided in urban cities of Indonesia where there is less stigmatism and discrimination. 22.Finally, the Board noted that the father of the 2nd Applicant had been supporting the Applicants and would likely continue his support in the future. The Applicants would also be able to claim support from a “wide range of government and non-government services and support”. 23.Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicants have failed to prove their entitlement to protection under any of the four applicable grounds under the USM. Hence, it dismissed their appeal. Grounds for judicial review 24.The Applicants did not advance any grounds for judicial review in the Form 86 or in their supporting affirmation. 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 their home country. 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 25.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[6]. 26.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 1st Applicant has not advanced any specific grounds on behalf of the 2nd Applicant. The 2nd Applicant's claim is therefore hinged on the 1st Applicant's and stands or falls with it. The Board assessed the Applicants’ claim on the basis of the case as they asserted but found on the basis of credible COI that they had failed to prove the factual basis to support of their claim and that they could relocate to other areas in Indonesia if their risk of harm turns real. 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. 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. 27.For the above reasons, leave to apply for judicial review was refused. Dated 8th day of July 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] 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 [2] 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”) [3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [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] [66] of Board’s Decision [6] [2018] HKCA 524 at para 14(1) |
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