Ai Dodoh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL763/2017

[2018] HKCFI 1698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 763 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 arrived in Hong Kong on 21 October 2011 as a foreign domestic helper but her contract was prematurely terminated on 18 February 2013.  She did not depart within 14 days as required and overstayed; she was arrested by the police on 24 October 2013.  After that arrest she lodged a non-refoulement protection claim.  The Director of Immigration (“the Director”) rejected that claim on 3 November 2015 and 3 July 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 6 October 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 13 October 2017 and requested an oral hearing; she appeared in person because her application for legal aid was refused.

2.The basis of her claim was that if she returned to Indonesia she would be harmed or killed by a loan shark for failure to repay her loan.  Both the Director and the adjudicator of the TCAB set out her evidence and case in detail in their decisions therefore, I do not intend repeat it here. 

3.The applicant’s father had borrowed money from a loan shark in 2004 to expand his grocery shop business but the loan shark insisted the loan be taken out under the applicant’s name because her parents were old and he was worried they would not be able to repay the loan.  It was a 300 million Indonesian rupiah loan and monthly interest payments were IDR 500,000 payable every six weeks.  Apparently it covered both principal and interest.  The title deeds for her parents’ home and land were used as collateral for the loan as well.

4.The family were able to keep up regular payments until about 2007 when the applicant’s mother had a traffic accident and some of the loan was used to pay for her surgery and medical expenses.  After that her father had difficulty making payments on time.  The loan shark would come every six weeks from early 2008 with a couple of men threatening to confiscate the house if he did not receive payment but would accept her father’s payment of at least, interest.

5.In late 2008 the loan shark became intolerant of her father’s inability to repay regularly and physically assaulted him as well as the applicant.  The loan shark demanded payment of interest owed in seven days.  The applicant’s father decided to move their family and discharge his wife from hospital to take them to Lampang in Sumatra to hide from the loan shark.  They had no long-term plan but he simply closed his shop and hoped the loan shark could not find them.  Her father told the applicant several months later that he sold the shop at a low price.

6.However, six weeks after moving to Sumatra the loan shark found them, assaulted the applicant’s father and forced him to sign over the title deeds of the family house and land to him but it was not enough to settle the outstanding loan plus interest.  The loan shark demanded the balance to be paid within two months and threatened to kill the entire family if it was not paid.  The next day the applicant’s father went to Lampang police station to make a report of the assault and threats but the police took no action against the loan shark.

7.The applicant decided to work in Singapore as a domestic helper to support her family and earn money to repay the debt but had to receive training before she could leave in early 2009.  The contract ended in January 2011 and she went home only for the loan shark to turn up one week later demanding payment of the balance.  The applicant had to pacify him and give him all of her savings amounting to IDR 2 million. In February 2011 she arranged to take up employment in Hong Kong and left in April.  She estimates that by February 2013 she and her father have repaid the loan shark about IDR 80 million including the value of the house and land but she was unable to remit any more money since then because she lost her job. She has lost contact with her family since mid-2013.

8.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”).

9.The adjudicator conducted an oral hearing and treated it is a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He analysed her evidence and examined her credibility; giving her an opportunity to make explanations.  He found her evidence concerning the loan agreement which was central to her case, very vague and general.  She could remember no details of significance.  He found it inherently improbable that the loan shark would agree she signed the agreement when her father’s house and land was pledged as collateral for the loan.  He set out why her evidence tended to confirm that the loan was taken out by her father rather than the applicant.

10.The adjudicator goes further and finds that taking her evidence as a whole, her credibility is damaged to the extent that he was not persuaded she was giving a truthful account of events relating to the loan which she says her father obtained from the loan shark; he gives full reasons in his decision.  He did not find her a truthful witness therefore, not a genuine claimant.  He would dismiss her claim on all applicable grounds on credibility alone.

11.He went on to say that even if her evidence was reliable, her problems arose from a private financial dispute between her father and the loan shark.  She herself had not suffered any serious injury, either mentally or physically at the hands of the loan shark or his people in the past.  She was not a party to the loan nor had signed the loan nor on her own evidence, had she been targeted by the loan shark.  On her own facts, he would find the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk therefore, he would dismiss her claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

12.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find no substance in the grounds of this application; they are not substantiated.  I find the Director’s and the adjudicator’s decision is to be without fault.

13.I have considered the applicant’s supporting affirmation and the grounds therein.  The first ground accuses the adjudicator of the TCAB of procedural impropriety; a failure to give reasons for rejecting the applicant’s BOR 3 risk claim.  The adjudicator clearly gives reasons for finding the applicant not credible but also at the same time says that even if she was telling the truth her evidence does not establish that the ill-treatment, whether physically or mentally, which she fears she would suffer reaches a minimum level of severity and that she faces a genuine and substantial risk of being subjected to such ill-treatment.  To support this, he looks at her evidence of past events, the loan shark has not physically seriously ill-treated her.  There is no merit in this ground.

14.The second ground accuses both the Director and the adjudicator of an error in law, for failing to take into account the psychological strain on the applicant.  This was not put forward as part of the applicant’s case nor was it so evident or obvious that they should have taken into account.  There is no merit in this ground.

15.The third ground accuses the Director of procedural impropriety because he failed to give reasons or conduct sufficient enquiry into relevant COI conditions.  There are no particulars to support this ground and a reading of the Director’s decision clearly shows otherwise therefore, there is no merit in this ground.

16.The last three grounds are convoluted, without particulars and are general statements of discontent that the decision-makers have dismissed the applicant’s claim and appeal without good reason or sufficient explanation.  I am satisfied both the Director and the adjudicator have given full reasons for their decisions.

17.I am satisfied there are no errors of law by either the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

18.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 27^th day of July 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