Sulistiowati and Another v. Torture Claims Appeal Board

HCAL 2694/2018

[2021] HKCFI 2163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2694 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 Applicants in open court;

Order by Deputy High Court Judge To:

1.  The 1st Applicant’s application to join the 2nd Applicant be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicants’ application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 15 October 2018 (the “Decision”).  The application was originally made by the 1st Applicant.  At the hearing, she made an application to join her younger daughter as a co-applicant.  The joinder application was granted.  

2.The 1st Applicant is an Indonesian national.  She first arrived in Hong Kong to take up employment as a foreign domestic helper in 2000.  She was last approved to work as a foreign domestic helper on 5 December 2009.  Her contract was prematurely terminated on 13 April 2011.  She did not return to Indonesia and became an over-stayer since 28 April 2011.  On 7 July 2011, she was arrested by the police for over-staying and referred to the Immigration Department.  She was released on her own recognizance.  She gave birth to her younger daughter on 24 August 2016.  She claimed non-refoulement protection claiming that she and the 2nd Applicant will be killed by the loan shark for her failure to repay a loan and by her husband for giving birth to the 2nd Applicant out of their wedlock. 

3.In due course, the Applicants’ non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 26 October 2017, the Director rejected their claims.  Their appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 15 October 2018.  

The Applicants’ case

4.The following account of the Applicants’ case is mainly based on the information in their non-refoulement claim forms which were prepared by them with assistance of the Duty Lawyer Service.

5.Upon her return to Indonesia in 2004, the 1st Applicant and her husband borrowed IDR 100 million from a loan shark to start a fruit supply business.  The business failed.  In 2005, while the Applicant was waiting for her return to Hong Kong to work as a foreign domestic helper, the loan shark visited her home and demand repayment of the loan.  He threatened to kill them if they fail to repay.  The loan shark came again three weeks later and demanded payment.  A fight ensued between the loan shark and her husband.  Again, the loan shark threatened to kill the Applicant and her husband if they failed to pay.  Then the Applicant left for Hong Kong to take up her employment.  She remitted her salary to her husband for repaying the loan

6.In February 2008, the Applicant returned to Indonesia on an unannounced visit.  She found her husband cohabiting with another woman, nicknamed Sri, in their matrimonial home.  She attempted to drug her husband and Sri so that she could leave her husband with her daughter.  Her attempt failed.  She was beaten up by her husband.  Then she stayed at her parent’s place for the rest of her stay in Indonesia before returning to work in Hong Kong.

7.In around 2012, the Applicant came to know a Bangladeshi in Hong Kong.  They developed a relationship and she gave birth to the 2nd Applicant.  She was informed by her elder daughter who was living in Indonesia that her husband had learned about her new born daughter and threatened to kill them upon their return to Indonesia.   

The finding of the Board

8.The Board accepted part of the 1st Applicant’s evidence but was not satisfied that the centrepiece of their case stands in view of the evidence which was rejected.  The Board accepted that under Indonesian law, the Applicant was legally a party to the loan, but considered her claimed fear of harm from the loan shark a speculation and that there was not a foreseeable, real or personal risk and nor were there substantial grounds for believing such a risk existed.  This is because the Board considered it a more sensible course for the loan shark to recover against the husband who owned significant land asset.  The Board also considered her fear of the husband speculative based on hearsay.

9.Based on the Country of Origin Information (“COI”), the Board was satisfied that the Indonesian government is committed to making systemic changes through laws, policies and coordination of services for victims of domestic violence and the Board considered this provides a framework of adequate protection should the Applicant requires it.  The Board was satisfied that the Applicant and the 2nd Applicant would be adequately protected from discrimination as a single mother or as an illegitimate child; and in any event, the discrimination will not be serious enough to rise to the level of persecution.  The COI also indicates that the Indonesian government has put in place a range of measures to assist returning Indonesian workers to reintegrate and help with transportation and settlement services.  It was not satisfied that the Applicants are at risk of not being able to subsist on their return to Indonesia or that they will be denied access to basic services.  In the light of the findings above, the Board considered there is not a real risk that the Applicants would face any of the proscribed form of harm should they return to Indonesia.

Grounds for judicial review

10.In her supporting affirmation, the Applicant raised the following grounds:

(1)   Procedural impropriety – failure to properly apply paragraph 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event;

(2)   Procedural impropriety – failure to conduct sufficient inquiry into the relevant COI conditions;

(3)   Procedural Impropriety – Failure to give reasons for assessment of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk; and

(4)   Error/misdirection in law – failing to take into account the considerations of psychological strain and threats.

At the hearing, the 1st Applicant was asked to expand and elaborate on these grounds.  She repeated her fear about the threat from the loan shark and her husband.  All that she could say were that she could not pay back the loan; she did not want to return to Indonesia but wanted to stay in Hong Kong; and that 2nd Applicant will be discriminated and bullied, if returned to Indonesia.

Grounds (1) and (2): Procedural impropriety –COI on effectiveness of government reforms

11.These two grounds may be conveniently considered together.  In essence the Applicant complained that the Board failed to conduct sufficient inquiry into the COI as to whether the reforms were effective.  The Board devoted 15 pages in its discussion and consideration of the relevant COI in paragraphs 67 to 93.  It quoted authoritative and credible sources, including the Country Reports on Human Rights Practices for 2017 published by the Department of State of the United States which was confirmed in a report by the UN Human Rights Council.  It quoted the Australian Government’s Refugee Review Tribunal report dated 21 July 2010 which researched into issues of, among other things, single mothers and children in Indonesia; a submission to the UN Committee on Migrant Workers by Pathfinders, a Hong Kong based charitable organisation in Special Consultative Status with the Economic and Social Council; a report on Article 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families by the Indonesian government to the UN Committee on 27 May 2017;  Indonesia Country Report 2018 by Bertelsmann Stiftung; and Antara (Jakarta News).  These are authoritative international publications by credible source asserting that the reforms have been carried out.   On the face and in the absence of evidence of obvious deficiency, the Board could not be criticized as having failed in its duty to conduct sufficient inquiry into the relevant COI.  

12.The Applicant was unable to particularize how the Board has failed, what sources it could have inquired from and what information would the Board have found had it conducted sufficient inquiry.  She did not dispute the COI cited above but said that the actual situation in her village is different.  Her complaint is just a bare assertion.

Ground (3):  Procedural Impropriety – Failure to give reasons for assessment of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk

13.The Board had set out the legal principles applicable to BOR 3 Risk in paragraphs 17 to 20 of its Decision.  It stated clearly that a claimant under this ground must establish two matters: first, that the ill-treatment he or she faces if expelled attains a minimum level of severity; and second, that he or she faces a genuine and substantial risk of being subjected to such ill-treatment.  In the Board’s finding of fact, it rejected the 1st Applicant’s evidence about her feared harm from the loan shark and her husband.  In paragraph 61 of the Decision, the Board rejected the scenario that the loan shark would wait for the 1st Applicant’s return to Indonesia to harm or kill her.  It found it incredible that the loan shark had not continued to pursue the husband who had significant asset in land.  It found the 1st Applicant’s fear of her husband’s threat was of the nature of hearsay only.  Then, the Board examined the various protection available from government to victims of domestic violence such as the 1st Applicant and found that state protection available to prevent the harm.  There is no substance in this complaint.

Ground (4): Error/misdirection in law – failure to take into account the psychological strain and threats to the Applicant personally or the direct threats to kill her

14.The Applicant did not identify the alleged error or misdirection in law.  She never complained about psychological ill-treatment in her notice of appeal to the Board.  The Board had considered the strain and threats she had allegedly been subjected to and found that they were no more than her own surmise and speculation.  There is no substance in this ground.

Conclusion

15.These grounds are plainly grounds directed against the Board’s finding of fact dressed up as procedural impropriety or error of law.  There is no substance in all these grounds.  The only complaint the Applicants have is that the 1st Applicant did not want to return to Indonesia because of her alleged fear for the loan shark and her husband and her concern that the 2nd Applicant will be discriminated.  The Board has dismissed those fears as not real or genuine.  The function of the court in judicial review is not to re-assess the non-refoulement claims 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

16.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.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such vitiating elements in the Decision.  The Decision was utterly without fault. 

17.For the above reasons, the Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Hence, the Court granted the 1st Applicant’s application to join the 2nd Applicant in this applications but refused them leave to apply for judicial review.

Dated 26^th day of July 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)