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

HCAL 2785/2018

[2021] HKCFI 1362

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2785 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:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 13 November 2018.

2.The Applicant is an Indonesian national.  She entered Hong Kong on 17 January 2013 to take up employment.  Her employment contract was prematurely terminated on 26 January 2013.  She departed Hong Kong to travel to China and then re-entered as a visitor.  She departed Hong Kong again for China on 15 March 2013 and returned on the same day on the basis of another employment contract.  That second employment contract was also prematurely terminated on 26 March 2013, as a result of which she was permitted to stay in Hong Kong only until 30 May 2013.  She overstayed thereafter.  On 14 August 2015, she surrendered to the Immigration Department.  On 21 December 2015, she attempted to lodge a non-refoulement protection claim, which she finally completed on 26 February 2016.  She claimed fear of being harmed or killed by her husband’s moneylender.

3.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].

4.By a Notice of Decision dated 27 April 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim.  She appealed to the Board against the decision of the Director in the Notice.   Her appeal was dismissed by the Board on 13 November 2018.  On 6 December 2018, she applied for leave to apply for judicial review against the Notice of the Director and the Decision of the Board.

5.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5]. For the benefit of the Applicant, the Court treated her complaints against the Director as directed at the Board also.

6.The Applicant did not request an oral hearing. Having considered the papers, the Court was of the view that the application may be determined on paper without an oral hearing. 

The Applicant’s case

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

8.The Applicant was married in 1994 and has three children.  She worked as a foreign domestic helper in Singapore from 1997 to 1999 and then briefly in Hong Kong from January to March 2013.  She lost contact with her husband after he went to Malaysia in 2012.  Then in or around October 2012 a man came to her home demanding her to settle a loan of 500 million Indonesian Rupiah granted to her husband in 2010.  The man threatened to kill her if she could not repay.  She promised to pay on condition that she may go to work in Hong Kong.

The finding of the Board

9.The Board found significant inconsistencies and gaps in her evidence which led to concerns about her credibility.  In her written statement, she said she was told by the man that her husband borrowed 500 million Indonesian Rupiah from him in 2012, but before the Board she said she first learnt about the loan from her husband in 2010 before he left for Malaysia.  Of greater significance is that she could give no particulars about this moneylender, such as his name and contact details and when and how she was to repay.  The Board also found it remarkable that it was not until more than two years after the Applicant had become an unlawful over-stayer that she applied for non-refoulement protection; and during all these years the loan shark never threatened or harmed her mother and children who were living in her home.  In the end, the Board did not accept that the Applicant faced a real chance of harm from the moneylender then and in the foreseeable future if she were to return to Indonesia.

10.The Applicant bears the burden of proving her case of fear of harm and risk.  Having failed to discharge her burden of proof, there is no factual basis to support her claims for non-refoulement protection under any applicable grounds.

The grounds of application    

11.In her affirmation filed in support of her application, the Applicant attached a copy of the hearing bundle before the Board and the Decision of the Board.  She did not advance any specific ground for her application.

12.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[6].

13.Having rigorously 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; the burden of proof and standard of proof and observed a very high standard of fairness.  For reasons as given by the Board, it did not accept the evidence of the Applicant.  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.  That is a finding of facts which is within the province of the Board as the fact finding tribunal to make.  The Decision of the Board 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 claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 12^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 549

[6] [2018] HKCA 524 at para 14(1)