Warsi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1995/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is an Indonesian national. She had worked in Hong Kong as a foreign domestic helper as early as 2005. She last arrived Hong Kong lawfully on 23 March 2014 to take up employment. However, her employment was prematurely terminated on 20 April 2014. She became an over-stayer since 5 May 2014. She was arrested by the police on 5 January 2016 for being a suspected over-stayer. She was convicted of the offence of breach of condition of stay and sentenced to two months’ imprisonm
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HCAL 1995/2018 [2021] HKCFI 1254 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1995 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review NOTIFICATION of the Judge’s decision (Ord. 53 r. 3) Following;
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.The Applicant is an Indonesian national. She had worked in Hong Kong as a foreign domestic helper as early as 2005. She last arrived Hong Kong lawfully on 23 March 2014 to take up employment. However, her employment was prematurely terminated on 20 April 2014. She became an over-stayer since 5 May 2014. She was arrested by the police on 5 January 2016 for being a suspected over-stayer. She was convicted of the offence of breach of condition of stay and sentenced to two months’ imprisonment on 9 January 2016. Then, she sought non-refoulement protection claiming that she was at risk of being killed by her husband and his loan shark. 2.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 7 September 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim. On 19 September 2017, 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 7 September 2018, the Board dismissed her appeal (the “Decision”). 3.On 20 September 2018, the Applicant lodged an application for leave to apply for judicial review. She named the proposed respondent as “USM” 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.The Applicant was married to her husband in around 1998 by arrangement of their parents. Nothing eventful happened until 2005 when her husband acquired the habit of drinking and gambling. He borrowed money from other people. In that year, after giving birth to a son, the Applicant came to work in Hong Kong. She remitted her earnings to her husband. 6.In around 2006, the Applicant’s husband told her that he had borrowed money from others and used the money she remitted to repay his debt. Nevertheless, everything went on well between her and her husband until 2013. 7.In that year, the Applicant received a call from a man claiming to have lent a huge sum of money to her husband. He told her that her husband gave him her telephone number and asked her to settle his debt. She replied that if the sum was huge she could not help. The man threatened to kill her when she returned to Indonesia and hanged up the telephone. The Applicant called her husband to verify. Her husband told her that the man was a loan shark and he had borrowed around Indonesia Rupiah 50 million from him. 8.In 2014, her husband called her and asked whether she would be willing to settle the loan. She told him she could not. Then, her husband said “see what will happen to you” and hanged up. That was her last contact with her husband. 9.The Applicant’s employment was terminated on 20 April 2014. She did not return to Indonesia hoping to find employment in Hong Kong. Hence, she over-stayed. She divorced her husband in around 2015. Although divorced, the Applicant is afraid that her husband would take revenge against her for not settling his loan for him. She did not think the Indonesian authorities could protect her. The finding of the Board 10.The Board found numerous inconsistencies in the Applicant’s evidence. It did not find her a truthful witness. It considered her case vague and unbelievable. The Board only accepted part of her evidence. The Board accepted that her husband might have borrowed money from some friends and money lenders and that she and her husband had divorced; but did not accept the situation regarding the unsettled debt was as serious as she claimed, particularly the death threats made by her husband and the loan shark. 11.That said, the Board was prepared and proceeded to assess her non-refoulement claims on the basis that her account was all true. The Board then took into account that the first threatening call took place in around 2013; that the husband repeated the threat in 2014; but then nothing happened. Having regard to the low intensity and frequency of the threatening calls from the husband and the loan shark, the Board considered the risk of harm upon the Applicant’s return to Indonesia was small and the ill-treatment, if inflicted upon her, would not attain a minimum level of severity. Accordingly, 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. 12.In respect of the Torture Risk ground, the Board further noted there are no substantial grounds to believe that any ill-treatment to be inflicted on the Applicant would be inflicted by or at the instigation of or with the consent or acquiescence of government officials, which is a necessary requirement for establishing a claim for protection under this ground. 13.To claim protection under the Persecution Risk ground, a claimant has to establish a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion (ie the Convention reasons); and his life or freedom would be threatened on account of one or more of these Convention reasons should he be returned to his home state. The Board considered the Applicant’s fear and risk are not well-founded and if persecuted, would not be for a Convention reason. 14.For the same reasons, the Board did not accept the Applicant would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 upon her return to Indonesia. 15.As for BOR 2 Risk, it relates primarily to the risk of being deprived of life by the government of the home state. The Applicant’s case is simply that she was threatened with death by her husband and/or his money lender, which had nothing to do with the Indonesian government. BOR 2 Risk is not engaged. Grounds for judicial review 16.The Applicant has not advanced any specific grounds for her application. Despite attempts were 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. 17.The Board had 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, though the Board did not accept the Applicant’s evidence in full, it proceeded to assess her risk and her entitlement to non-refoulement protection on the basis that what she said was true. 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. 18.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. The Board had considered the Country of Origin Information and found as a fact that there was no indication that the Indonesian police or authorities were involved or sided with money lenders or the husband and that there was nothing to support that the Indonesian police or authorities were unwilling or incapable of providing reasonable and sufficient protection to the Applicant. Thus, state protection is available to prevent the risk and internal relocation is a viable option to avoid the risk. 19.The Applicant’s overall or general complaint is about the Board’s finding of the low risk of harm and availability of state protection and internal relocation. These grounds are finding of facts by the Board. 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]. 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 20.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 4th 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) |
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