Case Document

100%Judiciary

HCAL 2477/2018

[2021] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2477 OF 2018

BETWEEN

	Wiyanti	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 submission 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 decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”). The Director refused the applicant’s claim of non-refoulement protection. The Board dismissed the applicant’s appeal confirming the decision of the Director.

2.The applicant, born in 1975, is a national of Indonesia. She arrived in Hong Kong in 2000 and was permitted to remain to take up employment as a domestic helper. Her contract was terminated on 17 October 2014, she then overstayed and remained in Hong Kong unlawfully. On 27 June 2015, she was arrested by the police and referred to the Immigration Department for investigation. She then lodged a non-refoulement claim. She 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 [14-24] 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 from whom her family between 1992 and 1994 borrowed 62 million Indonesian Rupiahs that she and her family were unable to repay. She claimed the creditor had come to her home to threaten and vandalised the furniture of her home. In 2014, after she came to work in Hong Kong, the creditor called her threatening that she would not see her family anymore if she did not settle the loan.

The Director’s decision

4.By a notice of decision dated 19 March 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low. 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 4 June 2018.

6.By a decision dated 19 October 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [35-98] of its decision. In a nutshell, the reasons can be summarized as follows:

(1) the Board found that the applicant is not a witness of truth because of the material differences between her oral evidence and information provided in her documents (e.g. she even wrongly remembered the name of the loan shark [41,45, 60];

(2) it did not accept the core facts she alleged including that her family borrowed 62 million Indonesian money from a loan shark; that her family or she had been harassed, threatened or assaulted by the loan shark or his men [61];

(3) it did not accept that she fears returning to Indonesia for the reason she claimed, or for any reason, and that a loan shark would harm her, if refouled [62].

8.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 6 November 2018 for leave to apply for judicial review of the decision of the Board.

10.No request for oral hearing has been made. The application is therefore considered on the papers.

11.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.

Discussion

12.The relevantprinciples regarding non-refoulement claims 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, country of origin information, 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.

13.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 will 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 decision will only focus on discussing the Board’s decision.

14.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and found her to be an incredible witness. The Board rejected her account of primary facts based on the major inconsistencies and contradictions in her evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds.

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

16.The applicant stated no grounds of the judicial review in Form 86. She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. 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 findings of the Board.

17.The Board was entitled to find the applicant incredible based on inconsistencies in her evidence. Indeed, the applicant delayed in lodging the claim for protection after she came to Hong Kong and even after she was not allowed to stay when her employment was terminated. She only made the claim after one year when she was arrested. Such conduct, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. It could be taken into account as damaging the applicant’s credibility.

18.Further, even if one givesthe claimed account of events the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating only a remote and unreal risk of future harm. There was no valid reason why the creditor would target the applicant and still wish to pursue the applicant after so many years.

19.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

20.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

21.There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22.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.

23.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

24.Accordingly, application for leave to apply for judicial review is refused.

Dated 4 February 2021

	(Chung Lai Fan, Christine)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 4 February 2021 Wiyanti Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 4 February 2021 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 10957/18/3/409/I1215 Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 424/18 (Formerly RBCZ 12285/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

Cites 3 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration