Dwi Dyah Listyaningsih v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1133/2018

[2021] HKCFI 226

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1133 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 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 decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1987, is a national of Indonesia.  According to records of the Immigration Department, she last arrived in Hong Kong on 12 March 2015 as domestic helper.  Her contract was terminated on 29 June 2015 and she overstayed since 14 July 2015.  She was arrested by the police on 6 August 2015, lodged a non-refoulement claim later and was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [27-36] 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 her half-brothers, Sulis and Budi, because she failed to repay a loan on their behalf.  She claimed that in June 2011, when she took a 2-week holiday to visit her mother in Indonesia, she learnt about the loan problems of her half-brothers and even met the debt collector.  She gave some money to her half -brothers to repay the loan shark.  In mid-July 2011, she flew back to Hong Kong to continue her employment contract.  In November 2014, her mother died and the applicant went back to Indonesia to visit her mother’s graveyard.  Her half -brothers told her that actually the loan had never been settled and they blamed her for not bringing back enough money to home.  Sulis took a rattan stick to attack her and she sustained bruises all over her back.  She did not report to the police.  She just returned to Hong Kong but she stopped remitting money to her half -brothers.  She then received calls from Sulis every week asking her to send him money.  She received no more calls from him after she was arrested.  When she was serving her sentence in prison, she learnt that she could seek protection in Hong Kong.

The Director’s decision

4.By a notice of decision dated 26 January 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The Director assessed there were no substantial grounds to believe that the risk of harm from her brothers would likely to materialize upon her return to her country.  He found that state protection is available to the applicant and internal relocation is a viable option for her.  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 13 March 2018.

6.By a decision dated 25 May 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 [42-48] of its decision.  In a nutshell, the Board found there was no evidence that she suffered any serious harm or serious injury, the applicant would not face real risk of being subjected to harm or ill-treatment upon her return to her country.  Even if there was such a risk, it was confined to the local area where she had lived, and she asserted at the hearing before the Board that she had no intention of returning to her home village.  Moreover, there are both governmental and non-governmental organisations offering protection and support to women in difficulties.  Therefore, it is not unreasonable for her to relocate to other areas in her country, such as Jakarta to sustain her living.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 19 June 2018 for leave to apply for judicial review of the decision of the Board (though she wrongly quoted the date of hearing before the Board as the date of its decision).

9.In the Form 86, the applicant did not set out any grounds for the relief sought.  In her affirmation in support, she repeated her claimed fear emphasising that “(my)step brother always forced me to give him money for play gambling…when ever he need an I don’t have money to give him.  He always beat me…he will kill me.” (sic)

Discussion

10.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.

11.When the applicant pursued her 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 examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

12.In the present case, the Board did not take issue with the applicant’s asserted primary facts.  It however disagreed with the applicant on the assessment of risk flowing from such events.  Taking into account all the relevant circumstances, it rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on availability and viability of internal relocation.

13.As mentioned above assessment of evidence, the risk of harm and availability of state protection as well as 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.

14.The complaint raised by the applicant in her affirmation contained nothing to demonstrate any procedural irregularity, unfairness or unreasonableness of the Board.  There is no reasonably arguable basis to challenge the Board’s findings.

15.Indeed, the applicant’s claim is extremely weak.  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 and is indicative of an unreal risk of harm at the most.  Moreover, she only filed her claim after she was arrested for her overstaying, which might not be consistent with conduct of someone in genuine fear for one’s life and safety.  It could be taken into account as adversely affected the credibility of the claim.  She can safely and reasonably relocate to other parts of her country.

16.The decisions of the Director and the Board decision are plainly reasonable.

17.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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

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

Dated the 29^th day of January 2021

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