Marina v. Torture Claims Appeal Board and Another

HCAL 841/2018

[2021] HKCFI 738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 841 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Indonesia who first arrived in Hong Kong in 2004 until 2006 when she left for Macau, and on 25 February 2007 she returned to Hong Kong as a visitor with permission to remain up to 27 March 2007 when she did not depart and instead overstayed until 5 November 2010 when she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to Indonesia she would be harmed or killed by the creditor of her grandfather or her father over his debt, and after her torture claim was rejected, she then sought non-refoulement protection on the same basis.

2.The Applicant was born and raised in Biltar, Indonesia.  In 2000 or 2001 her grandfather borrowed a loan from the local loan shark, but after he died without repaying his loan, the loan shark forced her father to repay the debt, and after her father also died in 2002, the loan shark then forced her mother, the Applicant and her sister to repay the debt, and so the Applicant came to work in Hong Kong in 2004 to help out her family with the repayment, but soon her mother also passed away and her sister had moved to Malaysia.

3.In 2006 when her employment contract expired in 2006, the Applicant moved to Macau to work there, returning to Hong Kong on 25 February 2007 as a visitor to look for further employment as a foreign domestic helper, but when she was unable to find any within the period of her visiting visa, she overstayed in Hong Kong until 5 November 2010 when she surrendered to the Immigration Department and raised a torture claim, and after it was rejected, she then sought her non-refoulement claim for protection for which she completed a Supplementary Claim Form (“SCF”) on 13 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

4.By a Notice of Decision dated 13 July 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

5.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found serious credibility issues with the basis of her claim and doubted her claim of risk of harm from the creditor of her grandfather or father in view of the inconsistencies and discrepancies of her alleged account of such threats that it was just her bare assertion without any reliable evidence that it is not accepted that her claim of being harmed or killed by her grandfather’s creditor is present real and imminent, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 258 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for the creditor of her grandfather or father to locate her.

6.On 25 July 2017 the Applicant lodged an appeal the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 9 February 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board.  On 4 April 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the Applicant to have given further different and conflicting and inconsistent evidence as to her claim of risk of harm from the creditor of her grandfather or father that she was not a reliable witness and concluded that neither she nor her family members owed any money to any loan shark in Indonesia and that she is not of any adverse interest to anyone there that her claim for non-refoulement protection failed on all applicable grounds. 

8.On 14 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(a)  that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(b)  that Director failed to take into account or give sufficient weight to the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was a direct result of misconduct of police officials and for which the state would be held liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(c)  that the Director had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise;

(d)  that the Director in his decision referred to only those COI which suited his preconceived conclusion which was a clear case of unfair attitude that is in itself enough to render the decision void;

(e)  that the Director failed to take into account that corruption and incompetency of the administration in her country is still a very serious problem of which various human rights organizations have complied reports which stated testament to the Applicant’s assertions;

(f)  that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(g)  that the Adjudicator failed to make sufficient enquiry before finalizing the determination of the Applicant’s claim; and

(h)  that the Adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for her non-refoulement claim as well as her appeal.  

9.All these grounds however appear to me something just copied from some pro forma commonly used by other applicants in this type of applications with mostly irrelevant and broad and vague assertions containing several key words and phrases without any particulars or specifics or elaborations as to how they applied to the Applicant’s case or how the Director or the Adjudicator had erred in their decisions, or in what way was state acquiescence relevant to her claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way did the Director or the Adjudicator fail to apply high standards of fairness or to make proper enquiry or to give her sufficient time or opportunity to provide relevant evidence in support of her claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 55 – 97 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

12.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

13.In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application. 

Dated the 19^th day of March 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