Yanti Mulyanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL579/2017

[2018] HKCFI 904

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 579 of 2017

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 Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indonesian national who came to Hong Kong to work as a foreign domestic helper in 2011.  She last entered Hong Kong on 1 September 2012 and was given permission to remain until 1 September 2014 or two weeks after termination of her contract whichever was earlier.  Her contract was prematurely terminated on 4 September 2012 but she did not leave within two weeks and overstayed.  She was arrested by the police on 14 February 2013.  She then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 24 June 2016 and 21 August 2017.  She lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 25 August 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 4 September 2017 and requested an oral hearing which was set down for 29 December 2017.  The applicant appeared in person having had her application for legal aid refused.

3.The basis of her claim was that if she was refouled to Indonesia she would be harmed or even killed by her second husband because she left him with her two children without any notice and came to Hong Kong and a loan shark because she failed to repay the loan borrowed from him.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only need summarise it here.

4.The applicant married a second time in 2005 and had two children.  She has worked as a foreign domestic helper in Saudi Arabia before her second marriage.  In early 2007 she borrowed 30 million Indonesian rupiahs from a loan shark to start her own grocery store and pay rent on a room so she could move out of the home of her parents-in-law.  The terms of the loan were that she had to repay the principal sum within three years and pay 30% interest per month.  However, her grocery store did not succeed and close down by the end of 2007 but she managed to repay interest every month until then totalling 15 million IDR.

5.She stopped paying interest when she closed her store and the loan shark came to her home demanding repayment and threatened to kill her if it was not forthcoming.  She was very scared and a few weeks later she ran away to Jakarta leaving her children to be looked after by her parents in law.  She found work as a domestic helper to earn money and then went Singapore in August 2008 to work as a domestic helper for two years.  Her husband was furious that she had left him with a huge debt and the two children and threatened to kill her when she returned home. Her mother gave her this information.  She came back to Indonesia after Singapore but stayed with a friend for about two months before training with an employment agency in Jakarta to train to work in Hong Kong.  Her first contract began in May 2011 and her second contract was prematurely terminated on 4 September 2012.

6.The applicant does not believe that the Indonesian authorities will assist her against a powerful loan shark and her life will be in danger if she returns home from him and her husband.  She last spoke to her mother in 2011 who told her the loan shark will not forgive her so do not come home or he will kill her.

7.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) 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, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.The adjudicator conducted an oral hearing and treated it as a rehearing.  He correctly set out the law and key legal principles.  The applicant elected to answer questions and give evidence.  He set out her evidence, analysed it and considered her credibility.  He set out the relevant approach in assessing the credibility of applicants in claims of this nature, including the authorities he relied on.

9.He found the applicant’s evidence inconsistent and confusing; he did not find her a genuine claimant.  He did not believe she was in debt to a loan shark and that as a result of her failure to repay that debt, the loan shark and her husband would harm her if she returned home. In addition, she put forward three possible dates for her son’s birthday but all three dates would make other parts of her evidence inconsistent.  The adjudicator set out all the inconsistencies in his decision.  Even her relationship with her husband has been embellished.  There is no evidence her husband has physically harmed her or threatened her and the adjudicator found no risk from him if she returned home.

10.He did go on to find that if relocation had been necessary and there was any risk of harm if she returned home, internal relocation was a viable option.  She had said that she had trained in Jakarta for several months as well as stayed with a friend when she returned from Singapore for several months without harassment from either her husband or the loan shark.  This was an indication that internal relocation was viable without undue hardship.

11.As a result of his finding that she was not credible and on the whole of her evidence there is no real risk she would be harmed or killed by either man she said she feared, the applicant had not made out a case for non-refoulement protection under any applicable ground.  She had failed to establish a real risk of persecution or torture or CIDTP.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.In her Form 86 the applicant states both the Director and the TCAB as proposed respondents but then states the TCAB as an interested party.  In the same Form 86 she then only seeks to apply to judicial review the TCAB decision of 25 August 2017, no other decision.  However, in her affirmation she does also include the decision of the Director dated 24 June 2016.

13.The applicant utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB is to treat the appeal/petition as a de novo hearing or rehearing.  In my view, to seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the Director’s decision unless in very specific circumstances. Those circumstances do not arise here.  I have considered the grounds of this application against the decision of the TCAB only.

14.In her affirmation, in the first two paragraphs it would appear that the first ground against the adjudicator accuses him of failing to give sufficient reasons for rejecting her claim under all four applicable grounds.  There is no merit in this ground, the adjudicator clearly analyses her evidence, assesses credibility and finds it lacking.  He gives sufficient reasons for coming to that conclusion.  He rejects her claim for lack of credibility.  He gives more than sufficient reasons and explanations.

15.In the second ground she complains that he finds she can relocate internally but avoids the facts in her claim.  This I will link with the first ground and repeat that he gives sufficient reasons for coming to the conclusion that she lacks credibility.

16.The remaining four paragraphs refer to the Director’s decision and submit procedural impropriety and irrationality in his decision.  As I have said above, this application should only have applied to the TCAB decision but if I am wrong, it is clear the Director made no errors of law nor do I see any evidence of procedural unfairness.  The Country of Origin information the Director referred to and relied on is abundant, objective and up-to-date and the finding of State protection most reasonable.  He set out the test for a BOR 3 claim, applies the applicant’s evidence and gives plain, full and complete reasons for his findings.

17.The applicant did not rely on the extended concept of State acquiescence despite what is alleged in her affirmation.  This is not a case where state authorities or other acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.

18.I do not find any grounds in the applicant’s affirmation that show there was an error of law made by the adjudicator of the TCAB.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness on his part.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 8^th day of May 2018.

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