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

HCAL 1987/2018

[2021] HKCFI 1246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1987 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 To:

1.  Leave be granted to amend the Notice of application for leave to apply Judicial Review; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is an Indonesian national.  She lawfully entered Hong Kong to take up employment as a foreign domestic helper on 29 July 2012.  Her employment was prematurely terminated on 15 April 2013. Accordingly, she was permitted to stay in Hong Kong until 30 April 2013; but she overstayed since. 

2.On 4 June 2015, she applied for a non-refoulement protection claiming that she will be harmed or killed by a loan shark if returned to Indonesia.  In due course, her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 21 March 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim.  She lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice.   On 14 September 2018, the Board dismissed her appeal (the “Decision”). 

3.On 19 September 2018, the Applicant lodged an application for leave to apply for judicial review.  She named the proposed respondent as “21 March 2017” and the Board as an interested party.  At the hearing, having ascertained the intention of the Applicant was to challenge the Decision, the Court granted leave to amend her application by naming the Board as the proposed respondent and the Director as an interested party.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service and incontrovertible evidence. 

5.While the Applicant was working in Hong Kong in early 2013, she was told by her family that her father had an accident and was admitted to hospital requiring a large amount of medical expenses.  Her mother and maternal borrowed money from a local loan shark, Ms Kureti, to meet the expenses.  Initially, the loan was 7 million Indonesian Rupiah.  It was later increased to 30 million Indonesian Rupiah when more medical treatment was required.  However, the father died.

6.In early 2014, while the Applicant was overstaying in Hong Kong after her employment was terminated, she received a phone call from an unknown woman asking her to pay interest for an outstanding loan of 20 odd million Indonesian Rupiah.  She was afraid and hung up the phone immediately.

7.Later, the same night, a man called saying that he was instructed by Kureti to call her.  He threatened if the Applicant did not repay the debt, she and her family’s lives would be in danger.  He said other debtors would be beaten up for not repaying and she would have to marry Kureti’s husband if she did not pay.  The Applicant was terrified and hung up the phone.

8.The Applicant changed her telephone number.  She did not contact her mother as she was angry with her mother for disclosing her telephone number to the loan shark.  She had not maintained contact with her family since and did not know what happened in Indonesia. 

The finding of the Board

9.The Board seemingly accepted the Applicant’s evidence in toto despite the father’s accident and borrowing were hearsay; and proceeded to make its determination on the basis of her evidence and the Country of Origin Information (“COI”).  The Board noted that the Applicant suffered no physical injuries and she never reported the alleged threat to the Indonesian authorities.  That was understandably so as she was outside Indonesia.  The Board held that the verbal threat was intended to put pressure on her to repay the loan and there was no intention of the part of the loan shark to kill or harm her.  The Board noted in particular that when asked whether she could be relocated to other parts of Indonesia besides her home town, the Applicant said she could; and when asked again whether it was possible for her to go back to live in other parts of Indonesia besides her home town, she said it was possible.

10.Having found the loan shark had no intention to carry out the threat, the Board was not satisfied that the Applicant had established a real risk that she will be harmed or killed if returned to Indonesia.  There would be no factual basis on which the Applicant would be entitled to protection under any of the four applicable grounds. 

11.Nevertheless, the Board took a step further to consider the COI.  Despite some negative COI about corruption and abuse of power by the police, the Board was satisfied that state protection of a reasonable standard is available to protect the Applicant from the risk and internal relocation is a viable option to avoid the risk.  Relocation was actually accepted by the Applicant.  Accordingly, the Board dismissed her appeal.

The applicable legal principles     

9.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

10.  The Applicant has not advanced any specific grounds for her application.  In her affirmation in support of her application, she repeated that she does not want to return to Indonesia because of her fear.  Despite attempts have been made to solicit from her any suggestion of procedural unfairness in the conduct of the appeal before the Board, or unreasonableness and irrationality in the Decision, the Applicant only repeated her fears and her wish not to be returned to Indonesia. 

11.  The Board reminded itself that the burden of proof of fear and risk was on the Applicant and reminded itself of the relatively low standard of proof required.  It referred to the relevant authorities.  In respect of the primary facts, the Board basically accepted the Applicant’s evidence in toto.  The Applicant could have no complaint about that.  It was only on the basis of her evidence that the Board made the further finding that the risk of harm was not real.  This was a reasonable inference to draw on the primary facts.  This finding could not be criticized as unreasonable or irrational.

12.The Applicant disagreed with the Board’s finding about adequacy of state protection and viability of internal relocation.  She said that the police are corrupt and would demand a bribe for processing her complaint and that the loan shark had underlings who can locate her anywhere in Indonesia.  The Board had considered the positive and negative COI in relation to these matters and found as a fact that state protection is available and internal relocation viable.  At the oral hearing, the Applicant also confirmed that internal relocation is viable.  The Board had taken care and asked the question twice to make sure that there was no misunderstanding.  This finding of the Board is unreproachable.

13.As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s’ claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

14.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 4^th day of May 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

[1]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  [2018] HKCA 524 at para 14(1)