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

HCAL 2297/2018

[2021] HKCFI 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2297 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 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 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.  She first arrived in Hong Kong on 12 February 2011 to take up employment as a domestic helper.  After working in Hong Kong for several contracts, her last contract was prematurely terminated on 9 March 2013.  She remained in Hong Kong as a visitor and overstayed since 21 May 2013.  On 6 August 2013, she was arrested by the police and referred to the Immigration Department for investigation.  She lodged a non-refoulement claim in March 2014.  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 [5-19] 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 Gan, a money lender from whom her father borrowed a loan on the condition that if her father could not repay the loan, she would be sold to Gan.  She claimed that in around 2004 or 2005, when the applicant finished high school, Gan told her father that if he could not repay the loan, she would be sold as a prostitute.  In order to avoid Gan, she and her father moved to live in another city.  However, one night Gan and his men showed up in her place, beat up her father and kidnapped the applicant to a place where she was forced to work as a prostitute for 8-9 months.  She got pregnant by someone unknown.  As she could not work, she was sent back to her home town where she met her boyfriend, Iswandi, and they got married.  However, Iswandi later abandoned her.  After she had received training in employment agency in Jakarta, she came to Hong Kong to work as a domestic worker.

The Director’s decision

4.By a notice of decision dated 26 April 2017, 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 16 April 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 [78-139] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s evidence was not believable because of major discrepancies in her claims [78, 81,88];

(2)  the claim relating to forced prostitution was entirely lacking in even the most basic levels of coherence, detail or fundamental credibility [92];

(3)  the claim of forced prostitution was simply a fabrication and the centerpiece of her claim could not stand [93];

(4)  in any event, state protection is available and internal relocation is a viable option for the applicant [97, 128].

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 22 October 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, the applicant did not set out any proper grounds for the relief sought.

12.In the affirmation in support, she said she did not want to go back to her country as she was afraid that Gan would harm her or force her to work as a prostitute because she cannot give the money back to him.

Discussion

13.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.

14.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.

15.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.  Moreover, the Board found there is reasonable state protection to her and internal relocation is a viable option for her.

16.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation 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.

17.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.  I do not find any reasonably arguable ground to challenge the findings of the Board.

18.The applicant delayed in lodging the claim for protection after she came to Hong Kong and only lodged her claim after she overstayed and 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 and adversely affected the credibility of the claim.

19.There is no valid reason why her father’s creditor would still wish to pursue her after so many years.

20.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.

21.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.

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

23.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

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

Dated 11 February 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