Endriyani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 874/2018 on BabelCite. This High Court CFI judgment was delivered on 4 September 2019.
1. The Applicant is a national of Indonesia. She is now aged 38 (DOB: 25 May 1981).
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HCAL874/2018 [2019] HKCFI 2169 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 874 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of Indonesia. She is now aged 38 (DOB: 25 May 1981). 2.The Applicant said she would be harmed or killed by her creditor Rudi Susilo (“Rudi”). 3.The Applicant first came to Hong Kong to work as domestic helper in May 2005. Her last employment contract was terminated prematurely in October 2010. The Applicant overstayed from 7 November 2010. 4.The Applicant was arrested by the police on 3 July 2016. She subsequently lodged a non-refoulement claim. 5.The Applicant claimed her father needed money for surgery in 2009. Also, the roof of her home in Indonesia leaked and required renovation. The Applicant was in Hong Kong then but she was able to borrow 250 million rupiahs from Rudi in Indonesia. 6.The Applicant made repayments to Rudi until October 2010. Then she lost her job and was unable to pay anymore. She remained in Hong Kong and informed Rudi of her problem. 7.The Applicant was subsequently told by her family that Rudi had come to press for repayment. Rudi threatened to confiscate their family house, which had been pledged as security for the loan. 8.In mid-2012, the Applicant’s father died. 9.In 2013, Rudi and some men came to force the Applicant’s family members to leave their home. The Applicant was warned by her brother not to return to Indonesia. Since then, she had lost contact with her family. 10.The Applicant said Rudi texted her that her family house was not enough for repayment. He required the Applicant to settle the remainder. 11.Rudi kept on texting the Applicant. He threatened to send his men to kill her if she returned to Indonesia. The Applicant last received such threat in 2015. 12.The Applicant claimed Rudi was a notorious loan shark with many people helping him. She had never met Rudi in person. 13.The Applicant had not reported the matter to the police or any government authorities in Indonesia. She feared Rudi would harm her if she complained him to the police. 14.The Applicant said internal relocation was not viable because Rudi had many subordinates in the country. 15.In the ensuing two‑tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively rejected the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture[1], (ii) risk of persecution[2], (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 16.On 21 May 2018, the Applicant applied for leave for judicial review Respondents 17.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 18.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 19.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review of the Director's decision. I shall deal with her application in relation to the Board’s decision only. The Director's decision 20.In his decision dated 20 January 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director rejected the Applicant’s non-refoulement claim with respect to all the four applicable grounds. The Board's decision 21.The Applicant appealed to the Board. The Adjudicator interviewed her on 12 December 2017. 22.The Adjudicator accepted the Applicant had borrowed money from Rudi. The Applicant told the Adjudicator that she still owed Rudi 15 million rupiahs. The Adjudicator noted the various securities that had been pledged or confiscated by Rudi. He was not convinced the outstanding sum was as much as the Applicant said. 23.The Applicant never complained to the Indonesian police. The Adjudicator did not believe Rudi had issued death threats to the Applicant. He was not persuaded Rudi was a powerful loan shark but just a small-scale local moneylender. 24.Even on the Applicant's account, the Adjudicator considered the complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). There were no involvement of state actors and no question of state acquiescence. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. 25.The Adjudicator found reasonable state protection and internal relocation were available to the Applicant in any event. 26.The Adjudicator did not accept the Applicant faced any risk that warranted non-refoulement protection. On 9 May 2018, he rejected the Applicant's appeal with respect to all the four applicable grounds. Grounds of judicial review 27.The Applicant complained against the Director and the Adjudicator. As said in paragraph 19 above, I would deal with her application in relation to the Adjudicator’s decision only. 28.The Applicant complained the Adjudicator failed to take into account of her psychological strain and the repeated threats Rudi made to her and her family. 29.The Applicant said the Adjudicator wrongly considered the manner of her departure from Indonesia and the fact that she had not been physically harmed by Rudi. 30.The Applicant said the Adjudicator was wrong to conclude there was no risk facing her and that state protection was available to her. Court hearing 31.The hearing took place on 27 September 2018. The Applicant was in person. An Indonesian interpreter provided service in court. 32.The Applicant said a friend helped her to prepare Form 86 and the affirmation. She confirmed all the grounds of judicial review were in the documents. 33.The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim. Discussion 34.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 35.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
36.The Applicant said the Adjudicator wrongly considered the manner of her departure from Indonesia and the fact that she had not been physically harmed by Rudi. 37.The Adjudicator did not make any comment on those two matters. 38.The Applicant complained the Adjudicator failed to take into account of her psychological strain and the repeated threats Rudi made to her and her family. She said the Adjudicator was wrong to conclude there was no risk facing her and that state protection was available to her. 39.The Adjudicator was not convinced the Applicant received death threats from Rudi. He found the Applicant faced no real risk of any kind. The Adjudicator had analysed the Applicant's case before he came to such conclusion, which was not Wednesbury unreasonable. 40.Concerning state protection, the Adjudicator had made a balanced study of country-of-origin information ("COI") before he found reasonable state protection as well as internal relocation were available to the Applicant in any event. 41.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 42.The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave to apply for judicial review. Dated the 4th day of September 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). |
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