Z v. Torture Claims Appeal Board and Another

HCAL202/2017

[2018] HKCFI 2374

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 202 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 The Deputy High Court Judge Marlene Ng  :

Leave to apply for judicial review be dismissed with no order as to costs.

Observations for the Applicant :

1.Z is single, and is an Indonesian national. She was born in 1981 in TT, Indonesia and had 7 siblings. Her 6 elder siblings joined 3 maternal uncles whilst Z and her elder brother K stayed with their parents. In/about 1981 Z and her family moved to Jakarta, and in/about 1991 or 1992 they moved to Central Java to live with Z’s maternal uncle A. In/about 1995-1996, Z’s parents opened a grocery stop. Z sometimes went to the grocery shop, but mostly lived with A. In 2000 Z completed high school education, and worked as a labourer in 2001-2003. In 2004, Z started to work as a domestic helper in Hong Kong. Z last arrived in Hong Kong on 23 February 2012, and was allowed to stay as a domestic helper till 16 August 2013. She was granted extension of stay as a domestic helper till 23 February 2014 or 2 weeks after termination of contract, whichever was earlier. Z did not leave Hong Kong by such deadline, and overstayed since 24 February 2014. On 10 June 2014, Z surrendered to the Immigration Department (“ImmD”) for overstaying. A removal order was issued against her on 24 June 2014, and served on her the following day. On 19 July 2014, P lodged a non-refoulement claim with the ImmD. She was released on recognizance on 30 July 2014.

2.Z submitted a non-refoulement claim form (“NCF”) dated 4 January 2016, and she attended screening interview on 18 February 20016 (“Interview”). At that stage, Z was assisted by duty lawyer from the Duty Lawyer Service. She was assessed on the applicable grounds of torture risk, BOR3 risk and persecution risk (as referred to in paragraph 23 below) under the unified screening mechanism. On 27 April 2016, the Director of Immigration (“DOI”) dismissed Z’s claim (“DOI Decision”). On 10 May 2016, Z appealed to the Torture Claims Appeal Board (“TCAB”). By that time she was no longer legally represented.

3.On 23 March 2017, ImmD wrote to give Z an opportunity to provide further/additional materials or facts on other absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”), particularly article 2 of the Hong Kong Bill of Rights (“BOR”) (ie BOR2 risk as referred to in paragraph 23 below). The DOI did not receive any reply from Z prior to the hearing scheduled before the adjudicator of the Non-refoulement Claims Petition Office (“Adjudicator”) on 6 April 2017. The DOI was excused from such hearing. At such hearing, the Adjudicator asked questions of Z and discussed Z’s non-refoulement claim under all applicable grounds, including the BOR2 risk. The Adjudicator gave Z the opportunity to make submissions, but refrained from making any decision until Z’s time to reply to the DOI’s letter dated 23 March 2017 elapsed. By a letter dated 7 April 2017 to Z, the DOI concluded Z failed to establish a personal and real BOR2 risk if she was to return to Indonesia (“DOI Further Decision”). Still Z did not reply to the DOI’s letter dated 23 March 2017 even after the hearing before the Adjudicator. Since the Adjudicator had given Z the opportunity to discuss the BOR2 risk with him at the hearing and Z did not reply to the DOI’s letter dated 23 March 2017, the Adjudicator proceeded to decide Z’s claims without conducting a 2^nd hearing subsequent to the DOI Further Decision. Z’s appeal was dismissed by the Adjudicator on 21 April 2017 (“Adjudicator Decision”).

Intended grounds of review

4.On 12 May 2017, Z filed Notice of Application for Leave to Apply for Judicial Review (“Form 86”) against the Adjudicator Decision for procedural unfairness, irrationality and error of law in that:

(a)     procedural impropriety – failure to consider the concept of state acquiescence as expounded by Lam J (as he then was) in TK v Michael C Jenkins, Esq & anor,[1]

(b)     procedural impropriety – failure to conduct sufficient independent inquiry into the relevant country of origin information (“COI”) including (i) failure to conduct critical analysis of the relevant COI materials, (ii) failure to provide adequate reasons as to why COI materials in support of the Adjudicator’s conclusion ought to be preferred over COI materials contrary to the same, (iii) cherry-picking from the relevant COI materials to support the conclusion of the Adjudicator, and (iv) failure to consider Z’s fears that she had been raped by the Former Policeman (see paragraph 7 below) and that she suffered attempted rape by the money collectors;

(c)     error/misdirection in law – failure to apply or properly apply paragraph 2 of the United Nations General Comment No 1 “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Implementation of Article 2 by State Parties” concerning the obligation of a signatory state to adopt means of redress aimed at ensuring the safety of its citizenry which were effective in any event;

(d)     error/misdirection in law – failure to consider the psychological impact of the facts raised as part of Z’s claim, including the rape and abusive language to which Z was subjected to;

(e)     irrationality/illegality – taking into account irrelevant considerations, including but not limited to the fact Z did not seek medical treatment and/or did not report to the police for her incident.

5.On 12 May 2017, Z filed her affirmation in support of the Form 86 (“Z Aff”). In the Z Aff (in contra-distinction to the Form 86), Z claimed she sought leave to apply for judicial review against both the DOI Decision and the Adjudicator Decision. But in Re Moshsin Ali,[2] the Court of Appeal held that the decision of the DOI was not susceptible to judicial review once an appeal to the TCAB (and/or petition to an adjudicator, as the case may be) was pursued by a non-refoulement claimant.[3]  Since Z had already petitioned to the Adjudicator against the DOI Decision, this court would focus on the Adjudicator Decision in the application for leave to apply for judicial review.

Legal aid

6.On 12 May 2017, Z applied for legal aid for his application under Form 86. But on 18 July 2017, the Director of Legal Aid (“DLA”) refused Z legal aid. The hearing of the Form 86 came before this court on 20 October 2017 (“Hearing”). On 22 September 2017, Z again applied for legal aid. The legal aid automatic stay was applicable as at 20 October 2017. When asked why she did not re-apply for legal aid earlier given the imminence of the Hearing, Z claimed she had not received the Memorandum of Notification that a Party Has Been Refused Legal Aid dated 18 July 2017 as she recently moved house, but she acknowledged she did receive notice of the same by telephone and learned she had to attend to the Hearing. Z was unable to offer any explanation for deferring her further legal aid application to September 2017. I am also unable to discern any change in circumstances. All Z said was that she did not wish to return to Indonesia, but that had been her stance all along and at time of her first application for legal aid (which was eventually refused). In the circumstances, at the Hearing I lifted the legal aid automatic stay pursuant to section 15(7) of the Legal Aid Ordinance Cap 91, and proceeded to hear Z’s application for leave to apply for judicial review. It transpired that on 30 November 2017 (ie after the Hearing) the DLA refused Z’s 2^nd application for legal aid.

Z’s claim

7.Z claimed that if she returned to Indonesia she would be harmed or killed by (a) a former policeman who raped her in 2000 (“Former Policeman”) to seek revenge on her after his imprisonment and termination of employment associated with such rape, and (b) moneylender(s) and/or money collectors as she was unable to repay the loan granted to her deceased mother.

8.Z claimed that in/about 1999 her mother borrowed an unknown amount from a moneylender who lived in Z’s village RV (“Village”) but originated from M, but she did not know the details or personal background of such moneylender. In fact, Z did not know such moneylender at all. Z’s parents borrowed money for living expenses for Z and education fees for K and Z because their earnings from the grocery shop were insufficient. Z did not know whether there was any documentary proof, but believed there was no written agreement. Z recalled that in/about 1999 she saw her mother gave some money to a money collector once, but she could not recall precisely when that happened nor the details thereof.

9.After Z’s father passed away, Z’s mother had difficulty in repaying the moneylender. Then in/about 1999, 2 money collectors (who seemed to be armed) came to the grocery shop when Z was there, and Z witnessed them verbally threaten her mother to make repayment. Z’s mother asked for time, but a money collector said the loan was due, banged on the table and shouted at Z’s mother. Z’s mother asked Z to go inside, and as Z did so she heard the money collector continue to scold her mother who remained silent. Z’s mother felt guilty and did not report to the police. Neither Z nor her mother was hurt on this occasion, but the Z Aff claimed they were mentally/physically harassed. Z’s mother told Z that since then the money collectors came to the grocery shop every afternoon to scold her and to bang on the table, but there was no physical assault.

10.Later on in 1999, when Z’s mother still had not repaid the moneylender, the money collector came for Z’s mother. Z asked for more time, but he refused as the loan was overdue and said he would be agitated if there was no repayment. The money collector wanted to hit Z, and he pulled her clothes which became torn. Z’s mother tried to separate them. The money collector left, and Z’s mother felt guilty and did not report to the police. Z claimed she did not sustain injuries, and did not report to the police as her mother did not allow her to do so.

11.A few days later, Z fell asleep at in the grocery shop with her head down on the table when someone behind her tried to wake her. She recognised it was the money collector who had tried to pull her clothes. He attempted to sexually assault her, and she tried to defend herself. He threatened that if her mother could not repay, Z could repay with her body. Z told him she would report to the police if he did not leave. He left when interrupted by a customer who came into the grocery shop. Z told her mother about this incident, but her mother did not allow her to report to the police. Z claimed she was not raped/injured on this occasion, but was shocked as she was asleep at the time.

12.The Former Policeman (then still a policeman) was a lodger at A’s house in the Village (about 10 minutes’ bicycle ride from the grocery shop), and A’s wife and 2 daughters sometimes visited him. Z did not know much about the Former Policeman (not even his name). Z claimed that in/about early 2000, the Former Policeman came to her room at A’s house when she was asleep and raped her despite her resistance. As she got him off the bed, A returned home from morning prayers, and the Former Policeman unsuccessfully tried to cover up what he had done by running back to his room. Z followed and threw a chair at him before going back to her room crying. Later that day, Z, A and the Former Policeman had a talk about the incident. Even though A seemed to be on the Former Policeman’s side, A told his neighbour about the incident and made report to the police. Z claimed she sustained injuries associated with the rape, but was just given some herbal drink for her injuries.

13.Z said sometime in early 2000 A told her the Former Policeman lost his job and was jailed for the rape even though Z did not give any statement to the police against him. Z did not know details of the Former Policeman’s arrest, sentence and imprisonment, but knew A gave his statement against him. In the Z Aff, Z claimed she was totally mentally broken, and had to leave the area where she lived.

14.In/about 2001, P moved to Bintan Island for work. Z was quite safe in her 2 years’ stay there since the moneylender, money collectors and/or Former Policeman did not find her there. Thereafter, Z went back to A’s village. Then one day she happened across the Former Policeman while in A’s village. The Former Policeman threatened to kill her, blaming her for loss of his job and his inability to support his family (ie his life was ruined because of Z). Z did not sustain any injuries on this occasion, and did not report to the police because A asked her not to. This was the last time Z saw the Former Policeman.

15.A recommended Z to go to work in Hong Kong. In 2003-2004, Z lived in Jakarta to train for such purpose. In 2004, Z came to Hong Kong to work as a domestic helper, and remitted monies from her salary to K, which monies her mother told her were used to repay the mother’s loan, but Z did not know the outstanding amount of the loan.

16.Z claimed although she was still afraid of meeting the moneylender, money collectors and/or Former Policeman, she returned to Indonesia in October/November 2006 to visit her ill mother (who was in critical condition) at the home of her sister SR in S in Jatinegrara, Central Java (about 1-hour bus journey from the Village). Z felt quite safe there as it was far away from her mother’s house, and the moneylender, money collectors and/or Former Policeman did not find her there as they did not know she had returned to Indonesia. When her mother became better, Z returned to Hong Kong as she was afraid the moneylender and Former Policeman would locate her in S in Central Java, but she did not encounter any problem at the immigration checkpoint when she departed Indonesia.

17.In February 2009, Z visited her ill mother (who was in critical condition) at the home of her brother S in D, Central Java (about 1-hour bus journey from the Village) even though she was still afraid of meeting the moneylender, money collectors and/or Former Policeman. Z stayed at S’ place for 2 weeks and felt quite safe as the moneylender, money collectors and/or Former Policeman did not know she had returned to Indonesia, and Z did not hear they were looking for her.

18.Z returned to Hong Kong on 20 February 2009, which was her last departure from Indonesia, without encountering any problem at the immigration checkpoint. After Z returned to Hong Kong, her mother continued to live with her brother S.

19.In 2010, Z’s brother S asked their cousin D to informed Z that the mother had passed away. Z was allowed to stay in Hong Kong as domestic helper until 23 February 2014 or 2 weeks after termination of contract, whichever was earlier. Z applied for non-refoulement in 2014, and claimed she did not do so earlier as she did not know about the mechanism.

20.Z claimed that before her mother’s death her mother told her she still owed money to the moneylender. Z further claimed the moneylender or money collectors were still looking for repayment because Z’s mother used to ask her to remit money for such purpose. After her mother passed away, Z did not know how the moneylender or money collectors asked for repayment, but they did not visit her brother’s or sister’s place as the moneylender or money collectors had no idea where their residences were. Z last met the moneylender or money collectors before she went to Bintan Island in 2001. In December 2015, Z’s brother S told her he heard from another uncle that the moneylender was still asking for repayment and looking for her, but S did not give details.

21.Z and her family members had never been accused, charged, interrogated, arrested, detained or imprisoned in Indonesia. But Z believed if she returned to Indonesia, the moneylender, money collectors or Former Policeman could find her anywhere in that country and kill her. Z believed her mother moved around to live in different places to avoid the money collectors’ threats. Further, Z did not have a place to live in Indonesia, and it was hard for her to seek employment there. Z also did not know any avenue to make complaint against misconduct of the Indonesian police, eg lodging complaint to National Ombudsman Commission.

Adjudicator Decision

22.The Adjudicator’s findings mainly concerned (a) the moneylender and money collectors, (b) Former Policeman, and (c) internal relocation. In making his findings and assessment, the Adjudicator took into account the following principles:

(i)     the test for assessing Z’s non-refoulement claim under all applicable grounds was a “real risk” of future ill-treatment of Z in the risk state, ie Indonesia;

(ii)     the risk state need not guarantee Z’s safety, but must provide a reasonable level of state protection, ie an effective criminal system, that does not operate on a discriminatory basis;

(iii)     it was Z’s duty to establish her non-refoulement claim, but the Adjudicator must assess such claim with a high standard of fairness and as a “joint endeavor”;

(iv)     much of Z’s evidence was hearsay, and whilst hearsay was not inadmissible, the Adjudicator might place reduced weight on that evidence;

(v)     section 37ZD of the Immigration Ordinance Cap 115 (“IO”) set out behavior which the Adjudicator might assess as damaging Z’s credibility.

23.The Adjudicator analysed Z’s claim under all applicable grounds:

(a)     risk of torture as defined in Part VIIC of the IO (“torture risk”);

(b)     risk of torture or cruel, inhuman or degrading treatment or pubishment (“CIDTP”) under article 3 of BOR (“BOR3”) (“BOR3 risk”);

(c)     risk of persecution by reference to the non-refoulement principles under Article 33 of the 1951 Convention relating to the Status of Refugees  (“persecution risk”);

(d)     risk of violation of the right to life under article 2 of BOR (“BOR2”) (“BOR2 risk”).

24.Moneylender and money collectors  Z told the Adjudicator at the oral hearing there were 2 moneylenders she feared would harm her if she returned to Indonesia, ie the 1^st moneylender who attempted to sexually assault her, and the 2^nd moneylender who often came to her mother’s grocery shop but who did not threaten or harm Z. Z was unsure, but suspected these 2 moneylenders worked together, but she “did not suspect her mother borrowed money from two separate moneylenders”. Z explained that prior to her mother’s death, her mother told her she still owed money to the moneylenders. Z’s brother told her the moneylenders continued to look for her. Z suspected that was because the moneylenders learned she was working in Hong Kong and assumed she therefore had a lot of money. But Z was unable to say when was the last time the moneylenders approached her brother, and variously said she did not know, it happened recently, it was in 2017, she did not know when in 2017 and prior to the last Muslim New Year in 2016. Z claimed the moneylenders had sought repayment from her brother, but he told them he had no money. The Adjudicator put to Z he found her evidence about the moneylenders and in particular her claims that they had ongoing interest in her to be vague and not persuasive.

25.For the purpose of the Adjudicator Decision, the Adjudicator was prepared to give Z the benefit of doubt, and accept her mother did borrow money from the moneylenders and had not fully repaid that debt at the time of her death. The Adjudicator also accepted the moneylenders approached her brother about repayment of the mother’s debt around the time of her mother’s death in 2010. But the Adjudicator found Z had exaggerated her claim that the moneylenders continued to contact her family to look for her in 2015, 2016 and 2017. The Adjudicator put to Z he considered any risk of harm to her from 1 or both moneylenders was limited to the village of her brother, and the Adjudicator went on to discuss with Z about the issue of internal relocation.

26.Former Policeman Z told the Adjudicator the Former Policeman “attempted” to rape her. When queried 3 times by the Adjudicator as to why she said “attempted rape”, Z avoided answering such question and just stated the Former Policeman raped her. When the Adjudicator expressed how Z described the incident as “attempted rape” and her avoiding answering his question as to why she referred to “attempted” rape would undermine her credibility, Z denied having said the word “attempted”. When it was pointed out to her that the proceedings were recorded, Z explained she did not mean to say “attempted” and she was nervous. The Adjudicator was not persuaded as the word “attempt’ was not prone to use by accident even when nervous. The Adjudicator considered Z’s evidence at the oral hearing that the Former Policeman attempted to rape her greatly undermined her credibility when her evidence elsewhere was that he raped her. The Adjudicator further considered Z’s avoidance of his question and her non-persuasive explanation as to why she said “attempted” at the oral hearing further undermined her credibility.

27.Z told the Adjudicator at the oral hearing it was when she was working in Bintan Island that she came across the Former Policeman who threatened her while she was visiting her friend (who was the only person she knew at that village). But when the Adjudicator put to Z she claimed in the NCF that she bumped into the Former Policeman in her Village after she returned to live with her uncle A upon finishing her work in Bintan Island, Z attempted to explain away the inconsistency by saying her uncle and her friend lived close by, but that did not sit well with what Z told the Adjudicator, ie she did not know anyone else in her friend’s village. Z then claimed she lived in her uncle’s village for a short time, but her evidence elsewhere suggested she lived with her uncle from 1999-2001 and from 2003-2004 (ie 3-4 years). Z then claimed she only slept in her uncle’s place and often ate her meals elsewhere. The Adjudicator expressed concern to Z that she was making up her evidence, and he found Z’s evidence about meeting the policeman when he threatened her to be materially inconsistent, and her attempted explanations for the inconsistencies further undermined her credibility.

28.Z told the Adjudicator she did not know where the Former Policeman lived, but suspected he lived somewhere near her brother’s village. She claimed that when she was working in Bintan Island she heard the Former Policeman was still looking for her, and after she returned to her uncle’s village the Former Policeman suddenly turned up. The Adjudicator considered Z returning to her uncle’s village when she knew the Former Policeman was looking for her to be another inconsistency that undermined her credibility.

29.When the Adjudicator told Z his concern that the Former Policeman was convicted of a serious offence of rape without her providing a statement to the police, Z said her aunt did not allow her to speak with the police, and her uncle told her he would take care of everything. Z added there was a problem between the Former Policeman and the neighbour, and the Former Policeman was a bad man which was why he was convicted. The neighbor encouraged Z’s uncle to make a police report because the Former Policeman also harassed the neighbour’s wife too. Z told the Adjudicator she did not undergo any medical examination, and her aunt treated her with home remedies. The Adjudicator was not satisfied the Former Policeman would be convicted of such a serious offence as rape without Z providing victim witness statement to the police. The Adjudicator considered this part of her evidence further undermined her credibility. The Adjudicator was not persuaded by her explanations that her uncle took care of everything or that the Former Policeman was convicted because he was a bad man and had problems with the neighbour.

30.The Adjudicator was not satisfied the Former Policeman raped or attempted to rape Z, so he rejected the assertion that the Former Policeman threatened to kill Z when she bumped into him either at the village of her uncle or her friend. The Adjudicator also rejected the Former Policeman was looking for Z, and considered Z had fabricated claims regarding the Former Policeman in order to strengthen her application for non-refoulement. For the above reasons, the Adjudicator rejected Z’s claims regarding the Former Policeman as not credible, and he considered Z did not face a real risk of harm from the Former Policeman if she was refouled to Indonesia.

31.Internal relocation The Adjudicator accepted Z’s mother had an unpaid debt owing to the moneylenders who sought repayment from her family. Z told the Adjudicator that her uncle died, and if she returned to Indonesia she could live with her brother K as she was not close to her other siblings having grown up apart from them, but she did not want to return to Indonesia. The Adjudicator discussed with Z that it appeared her risk of harm from moneylenders was limited to her brother’s village, so it might be reasonable for her to relocate to a large city elsewhere in Java (eg Jakarta, Surabaya or Bandung) with large populations. When queried as to why the moneylenders would know her return to Indonesia and how they would be able to find her in those cities with millions of people, Z replied she could not relocate elsewhere in Indonesia as she had nowhere to live, no money and no relatives in these cities.

32.The Adjudicator accepted Z would face some initial difficulties in relocating to Jakarta, Surabaya or Bandung, including finding accommodation and employment. However, Z was still a relatively young woman who was single. She had shown herself to be willing to relocate for work in the past, both to Bintan Island and Jakarta. Furthermore, she had demonstrated the wherewithal to establish herself in Hong Kong. The Adjudicator considered Z would be able to overcome any initial difficulties associated with relocating, and was satisfied that in Z’s circumstances it was reasonable for her to relocate to Jakarta, Surubaya or Bandung.

33.The Adjudicator found Z had exaggerated her claims that the moneylenders contacted her family in 2015, 2016 and 2017 to look for her. The Adjudicator considered that with the passage of time since her mother’s death in 2010, there was only a remote risk that the moneylenders had any ongoing interest in Z, and a remote/speculative risk (and hence not a real one) that one or both of the moneylenders would be aware of her return to Indonesia and/or be motivated to seek out Z and/or be able to locate her if she was refouled to Indonesia and relocated to Jakarta, Surabaya or Bandung. For all such reasons, the Adjudicator considered Z would not face real risk of harm from either or both moneylenders if she was refouled to Indonesia and relocated to Jakarta, Surubaya or Bandung.

34.Persecution risk Although Z was a national of the risk state (ie Indonesia) and was outside of her country of nationality, the Adjudicator found on credible evidence before him that there was not a real risk Z would face persecution if she was refouled to the risk state, so she failed in her persecution claim. Given such finding, the Adjudicator found it unnecessary to assess whether the harm Z claimed to fear was for a Convention reason.

35.Torture risk  For the same reasons, the Adjudicator found on credible evidence before him that Z failed to establish she would face a real risk of torture as defined in section 37U of the IO if she was refouled to the risk state. Given that finding, the Adjudicator found it unnecessary to assess state acquiescence.

36.BOR2 risk Again, for the same reasons, the Adjudicator found Z failed to establish she would face real risk of being deprived of her right to life under BOR2 if she was refouled to the risk state.

37.BOR3 risk Still again, for the same reasons, the Adjudicator found Z failed to establish she would face a real risk she would be subject to torture or CIDTP under BOR3 if she was refouled to the risk state.

38.Consequently, the Adjudicator rejected Z’s non-refoulement claim as not substantiated on all applicable grounds, and confirmed the DOI Decision and DOI Further Decision.

Leave to apply for judicial review

39.In the present application for leave to apply for judicial review, the court is to consider whether the Adjudicator had made any error of law or conducted procedures that failed to comply with the high standard of fairness as explained by the Court of Final Appeal in Secretary for Security v Saktheval Prabakar.[4] In addition, the court would also rigorously examine and anxiously scrutinise the decision-making process and the reasons by which the Adjudicator reached the Adjudicator Decision, and consider whether they satisfied the Wednesbury test.

40.The Court of Appeal had recently highlighted the role of the court in a judicial review in Re Nupur MST as follows:[5]

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

41.In respect of the grounds of review in paragraph 4(a)-(b) above (failure to consider concept of state acquiescence and failure to conduct sufficient independent inquiry into relevant COI), it is true that the Adjudicator did not assess state acquiescence or inquire into COI materials, but his view was that it was unnecessary for him to do so (see paragraph 35 above).

42.In relation to the moneylenders and money collectors, although the Adjudicator accepted (a) Z’s mother did borrow money from the moneylenders, (b) such loan remained outstanding at the time of her death, and (c) the moneylenders approached Z’s brother about repayment of such loan around the time when the mother passed away in 2010, the Adjudicator considered Z had exaggerated that the moneylenders continued to contact her family in 2015, 2016 and 2017, and further found the risk of harm to Z from the moneylender(s) was limited to the village of her brother.

43.In respect of the Former Policeman, the Adjudicator considered the evidence before him and was not satisfied the Former Policeman raped or attempted to rape Z and/or the Former Policeman threatened to kill Z when she ran into him at the village of her uncle or her friend. The Adjudicator found Z’s claims regarding the Former Policeman as not credible and amounted to fabrication to strengthen her application for refoulement, and hence Z did not face a real risk of harm from the Former Policeman if she was refouled to Indonesia.

44.In my view, the Adjudicator meticulously considered the evidence in relation to the moneylenders, money collectors and/or the Former Policeman, and also Z’s claims on all the 4 applicable grounds. As set out in paragraphs 24-25 and 26-30 above, the Adjudicator had proper basis to find Z’s claim in relation to the moneylenders and money collectors exaggerated, and her claim in relation to the Former Policeman incredible. In my view, since the Adjudicator dismissed Z’s claim primarily due to lack of credibility and had given detailed consideration to the alleged demands/threats for repayment by the moneylenders and money collectors, and the alleged rape, attempted rape and death threat by the Former Policeman, and ultimately found such allegations did not support Z’s case, the Adjudicator was entitled to conclude Z did not have any real risk that warranted non-refoulement protection, especially when she could relocate to Jakarta, Surabaya or Bandung if so refouled. In my view, as set out in paragraphs 31-33 above, the Adjudicator had proper basis to find internal relocation to Jakarta, Surabaya or Bandung (despite some initial difficulties associated with such relocation which Z should be able to overcome) was reasonable such that Z would not face real risk of harm from the moneylender(s). In light of such findings, ie Z was not really at risk in her home country, the Adjudicator was entitled not to go on to discuss issues of human rights violations, state acquiescence, state protection and/or COI materials because Z failed to establish her case. There was no error committed by the Adjudicator in arriving at his conclusions. Instead, the Adjudicator had sufficient basis to come to his findings, conclusions and decision, which were not Wednesbury unreasonable.

45.In respect of the ground of review in paragraph 4(c) above (failure to properly apply paragraph 2 of General Comment No 2 “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Implementation of Article 2 by States Parties”), such provision concerns the requirement that states parties must take action that will reinforce the prohibition against torture through legislative, administrative, judicial or other actions that must be effective in preventing it. In my view, this harked back to the above discussion in paragraphs 41-44 above, and for the reasons discussed therein, I find this intended ground of review untenable.

46.In respect of the ground of review in paragraph 4(d) above (failure to consider the psychological impact of the facts raised as part of Z’s claim including the rape and abusive language to which Z was subjected to), as explained in paragraph 43 above, the Adjudicator was not satisfied the Former Policeman raped or attempted to rape Z and/or he threatened to kill Z when she ran into him at the village of her uncle or her friend. The Adjudicator found Z’s claims regarding the Former Policeman as not credible, and hence he was entitled not to go on to discuss the psychological impact of the alleged rape, attempted rape or abusive language by the Former Policeman which he found to be fabrication on the evidence before him.

47.In any event, the Adjudicator assessed the risk of harm to Z if she returned to Indonesia was low if she were relocated to Jakarta, Surabaya or Bandung. The Adjudicator was not persuaded Z would face any real risk of ill-treatment at the hands of the moneylenders and his men or at all if she were to be refouled and relocated in Indonesia. By reason of the above matters, the Adjudicator could not be faulted for not finding for Z in relation to any psychiatric harm or mental suffering.

48.In respect of the ground of review in paragraph 4(e) above (taking into account irrelevant considerations), Z complained that the Adjudicator improperly considered the fact she did not seek medical treatment or did not report the incidents to the police. Having carefully reviewed the Adjudicator Decision, whilst I note the Adjudicator stated these matters as background facts/evidence, it did not appear he relied on these matters to dismiss Z’s non-refoulement claim. There is no merit to this intended ground of review.

49.I am unable to find any grounds that showed there was an error in law by the Adjudicator. I see no evidence of procedural unfairness or failure to adhere to a high standard of fairness. The Adjudicator Decision was not Wednesbury unreasonable.

Conclusion

50.In my view, Z’s claim was not reasonably arguable. There was no realistic prospect of success, and I refuse leave for judicial review with no order as to costs.

Dated  8^th day of November 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