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

HCAL 873/2018

[2019] HKCFI 779

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 873 of 2018

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 be refused.

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

1.The applicant is an Indonesian national who came to work in Hong Kong as a domestic helper in 2005.  Her last employment contract was prematurely terminated on 25 July 2010 but she did not leave as required within two weeks of that date.  She was arrested by the police on 10 January 2011 and a removal order was made against her on 27 January 2011.  The applicant then lodged a non-refoulement protection claim on 14 February 2011 and she was released on recognizance on 1 March 2011.  She failed to report as required and essentially disappeared.  She was arrested by the police on 28 February 2017, six years later.  She was allowed to proceed with her claim and released on recognizance again within a month.

2.The Director of Immigration (“the Director”) rejected her protection claim on 18 August 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal/petition on 10 May 2018 after an oral hearing.  She then filed a notice of application for leave to apply for judicial review on 21 May 2018 and requested an oral hearing.  She appeared on 1 March 2019 in person.

3.The basis of her claim was that if she were to return to Indonesia, her life would be in danger from a loan shark called Mohammed Sunny and a loan company called “loan” because of loan disputes.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.Essentially, the applicant’s case was that she was in fear of ill-treatment by loan sharks from whom she had borrowed money, and whom she had failed to repay.  She is single and has had no contact with her parents from 2010.  She finished school in 1997 and went to work as a domestic helper in East Java in 1999.  She spent a year in 2004 training in an employment agency in Malang before coming to Hong Kong as a domestic helper in 2005.

5.In 2009, the applicant borrowed 35 million Indonesian rupiahs or about HK$20,000 from a loan shark called Mohammed Sunny so that the family could rebuild their home.  In November 2009, the applicant borrowed a further 40 million rupiahs from a loan company called “loan”.  Her family needed more money to finish the building works.  She paid the monthly repayments for about six months before defaulting.  Her contract was terminated and she was unable to repay each month.  This loan shark was well‑known in her home area for lending money.

6.After the applicant stopped repaying the loans, Mohammed Sunny visited her parents and then started to call her in Hong Kong often demanding repayment and threatening her home and family.  The applicant changed her mobile phone number and he was no longer able to contact her.  A staff member of the loan company also called to threaten her family’s safety if she did not repay.  The applicant stopped contacting her parents from about this time because she was too ashamed.  In about 2016, her neighbours in Indonesia told her that the house had been confiscated and her parents no longer lived there.  She herself had not spoken to either Mohammed Sunny or the staff member since 2010.

7.The applicant says she is unable to live anywhere else in Indonesia because she has no other family or friends anywhere who can help her.  She could not turn to the police because it was a private financial dispute.  She was worried she would be stopped at the airport by the moneylenders if she returned.

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 the appeal as a rehearing.  He correctly set out the law and key legal principles applicable to the four grounds.  He set out the evidence of the applicant and his findings when he applied the applicant’s case to the four grounds.

10.The adjudicator applied the law to the applicable grounds in his findings, concluding that the applicant was unsuccessful in showing she was at risk of torture within the definition of torture under BOR 3.  She had failed to show that the police or other authorities posed a threat to her right to life or that they had any adverse interest in her at all, her BOR 2 claim failed.  The adjudicator also found that the applicant could not prove a persecution risk for the purposes of a non-refoulement protection claim.  The threats she describes did on amount to persecution, they arise from her failure to repay two loans.  They are not because of race, religion, nationality, membership of a particular social group or political opinion; a refugee Convention reason.  Lastly, he found that she had no substantial grounds for believing the applicant would be liable to torture as defined in section 37U of the Ordinance.

11.The adjudicator considered up-to-date, relevant and objective country of origin information (“COI”).  He found that there was state protection available to the applicant if she was at any risk in her home district.  He also found that internal relocation to another place in Indonesia was a viable option to the applicant without undue hardship.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

12.I have considered with rigorous examination and anxious scrutiny the papers, grounds of this application and the applicant’s oral submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

13.The grounds in the applicant supporting affirmation are not so clear or coherent but from what I can summarise, she submits both decision-makers failed to conduct sufficient enquiry into relevant COI information.  They also failed to consider the applicant’s psychological and mental distress from her fear of the moneylenders.  She says that both decision-makers also failed to give reasons for rejecting her BOR 3 claim.

14.The proper approach for an application for leave to apply for judicial review should be to seek a judicial review against the decision of the TCAB only.  The applicant has only utilised the channel of appealing the Director’s decision to the TCAB.  The adjudicator treated the appeal/petition as a de novo hearing or rehearing.

15.There are no particulars put forward in her grounds against the adjudicator.  There are no grounds to show what COI information was irrelevant or what relevant COI information the adjudicator should have considered.  Because of the lack of particulars, I find no merit in the submission that there was a failure to conduct sufficient enquiry into such information.

16.The adjudicator showed and set out what COI information he relied on and also set out why he found there to be no BOR 3 risk.  He also gave reasons for rejecting all the applicable grounds.  The question of mental distress or psychological strain was not raised before either decision-maker.

17.After considering the applicant’s affirmation and grounds, I do not find any that show there was an error of law by the adjudicator.  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; it was 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 the 20^th day of May 2019

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