Ana Irmawati v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 864/2018

[2020] HKCFI 2300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 864 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1988, is a national of Indonesia.  She arrived in Hong Kong in August 2010 to work as a domestic helper.  Her employment contract was terminated in January 2011 and she was allowed to remain as a visitor until 13 April 2011.  She overstayed unlawfully until she was arrested by the police 12 October 2013 and referred to the Immigration Department for investigation.  On 3 March 2014 she lodged a non-refoulement claim.  She was subsequently released on recognizance.  She was arrested on 10 May 2017 for possessing a fraudulent ID card and sentenced to 12 months’ imprisonment.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [9] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by a loan shark.  In 2006 her mother borrowed a loan from that loan shark to pay the medical expenses of the applicant’s grandmother.  Her parents were unable to repay the debt.  The applicant did not know how much her mother borrowed or the payment terms.  In 2006, the creditor visited her home and assault the applicant.  In April 2010 her mother told her the loan shark was willing to forgive the debt if the applicant married him.  She refused.  Fearful her parents would force her to marry the loan shark, she left Indonesia for Hong Kong after 4 months’ training by employment agent.  In 2016 she had a relationship with a man who assaulted her in Hong Kong.  Somehow the loan shark learnt of her relationship and threatened to kill her for being unfaithful to him.  The loan shark continued to threaten her family and still wants to marry her.

The Director’s decision

4.By a notice of decision dated 30 October 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reasons that there are no substantial grounds for believing a real risk of harm, availability of state protection and internal relocation.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.The applicant attended a hearing before the Board on 27 February 2018.

6.By a decision dated 9 March 2018, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave reasons for rejecting the applicant’s claim at para [26-49] of its decision.  In a nutshell, the Board reasoned that:

(1)  despite some doubts it had about the credibility of the applicant’s claims [28], benefit of doubts was given to her [31];

(2)  it accepted that her parents remain indebted to the loan shark and it is plausible the loan shark will seek to take retribution against her for refusing to marry him [31];

(3)  the loan shark may cause harm or suffering to her [32];

(4)  however, there is only a remote chance the loan shark would be aware of her return to Indonesia [37];

(5)  there is only even further remote chance that he would be able to locate her in such a large city as Jakarta [37] and she will not face undue hardship for her to relocate to that city [39];

8.Having considered the totality of the evidence before it, the Board concluded that the applicant would not be at any real risk of proscribed harm, if refouled [39].

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 18 May 2018 for leave to apply for judicial review of the decisions of the Director and the Board.

10.By a letter dated 4 June 2020 posted to the last updated address of the applicant with the Immigration Department, the court invited the applicant to submit information including any submissions that she would like to make.  Since then, the applicant has not made any response or submission to the court.  The applicant did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

11.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

12.When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

13.The applicant did not set out any grounds for judicial review in her Form 86 and affirmation.  Nevertheless, the court is under a duty to examine the decisions of both the Director and the Board with rigorous examination and anxious scrutiny to find out if there are any error of law, irrational findings, or procedural unfairness.

14.In the present case, the Board in fact took a view on facts most favourable to the applicant and did not take issue with her asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Having taken into account all the circumstances relied upon by her, it rejected the applicant’s claim based on its assessment of the risk of harm and finding on the viability of internal relocation.

15.As explained above assessment of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

16.The Form 86 and affirmation did not set out any ground to point to any procedural irregularity, unfairness or unreasonableness of the Board.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.The findings on credibility of the applicant by the Board are most favourable to the applicant.  She overstayed unlawfully since 14 April 2011 and arrested by the police after 2 years and 6 months on 12 October 2013.  She submitted her claim for non-refoulement protection on 3 March 2014.  The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could have been viewed adversely on her credibility and was inconsistent with someone in genuine fear for her life and safety.

18.Even on her own account, the alleged past ill-treatment was of low intensity and frequency.  It came nowhere near the level of severity required by law to constitute torture or CIDTP.  There is no substantial ground for believing that the applicant would be at real risk of any type of proscribed harm, if refouled.

19.The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state her case and took a view on facts which are most favourable and fair to the applicant.  There cannot be any criticism of its determination which is eminently reasonable.

20.The Director’s assessment of the risk of harm, availability of state protection and internal relocation cannot be faulted.

21.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

22.For the reasons given, there is no prospect of success in the applicant’s intended application.  Accordingly, I refuse to grant leave to apply for judicial review.

Dated 14 September 2020

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