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

HCAL 1585/2021

[2022] HKCFI 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1585 of 2021

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 (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s 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 25 October 2021 (the “Decision”).

2.The Applicant is an Indonesian national.  She was a foreign domestic helper.  She exited Hong Kong briefly to renew her visa and last arrived Hong Kong on 12 June 2019.  She was permitted to remain until 12 June 2021 or two weeks after termination of her employment contract, whichever the earlier.  Her contract was prematurely terminated on 20 April 2020.  She overstayed thereafter.  She was arrested by the police on 14 October 2020 and referred to the Immigration Department.  She was prosecuted for overstaying and sentenced to 12 days’ imprisonment, suspended for 12 months.  She was released on recognizance on 31 October 2020 with a two week reporting condition.  She defaulted her reporting condition.  She was arrested again by the police on 4 May 2021 and referred to the Immigration Department.  Then she made non-refoulement claims by way of written significations dated on 24 May 2021.  A removal order was issued against her on 28 May 2021.  She is now released on recognisance. 

3.The Applicant submitted a formal non-refoulement claim form on 16 July 2021 and attended a screening interview by an immigration officer on 27 July 2021.  In due course, her non-refoulement claims were assessed on all four applicable grounds 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 2 August 2021 (“the Notice”), the Director of Immigration (the “Director”) rejected her claims under all four applicable grounds.  She appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Decision of the Board dated 25 October 2021.  She now seeks leave to apply for judicial review of the Decision.

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

The Applicant’s case

5.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. 

6.The Applicant was born in 1989 and is now 32 years of age.  She had received nine years of formal education.  She married her husband in 2007.  Her husband was a farm worker and sole bread winner of the family.  The Applicant was a full-time housewife taking care of their son.  In 2013, the Applicant and her husband planned to build a house for the family.  The Applicant borrowed 90 million rupiahs from Windar, a well-known loan shark in their neighbourhood.  Under the terms of a written loan agreement, she was required to pay 6 million rupiahs monthly, inclusive of interest and settle the loan within four years.  The loan was applied towards building the house.  The Applicant managed to make six repayments but defaulted thereafter when her husband lost his job.

7.In mid-2013 Windar and three of his underlings went to the Applicant’s home to demand repayment.  He threatened to kill her and her family members if she could not repay the next time.  They took away her refrigerator and washing machine and broke her windows.  They also hit the Applicant and her husband on their cheeks.  The incident lasted for four hours.  That evening, the Applicant and her family fled to Jakarta and stayed at her cousin’s house.

8.After about three months, the Applicant’s husband went to work in a factory in Kalimantan while the Applicant and their son stayed in Jakarta.  The Applicant did not hear from Windar but was told by her uncle that Windar usually came to their neighbourhood once every two to three months asking for their whereabouts.

9.In 2014, the Applicant started working in Singapore as a domestic helper.  She remitted money home to repay the loan.  The repayment was not sufficient and Windar kept on threatening to kill her.  In 2017, the Applicant started working in Hong Kong. She remained in contact with her husband and son.  She was told by her uncle that Windar kept looking for her and that it was not safe to return to Indonesia.  Hence, she continued to stay in Hong Kong after her contract of employment was terminated.

The finding of the Board

10.Because of certain significant discrepancies between her claims stated in the non-refoulement claim form and her evidence at the oral hearing before the Board, the Board did not accept the Applicant’s evidence in its totality.  The Board was not persuaded that she had provided a truthful account of the history concerning her claims of past harm in her country.

11.Central to her claim is the loan from the loan shark.  In her non-refoulement claim form she gave details of the threats received involving specific death threats against her and members of her family.  But at the hearing, she was only able to recounted the threats made against herself in her capacity as the borrower and the threats were merely threats of further physical assault and not death.  She also gave inconsistent account of what occurred after that event in mid-2013, such as whether her husband stayed with her in Jakarta or moved immediately to Kalimantan; with whom she stayed in Jakarta; whether she repaid any part of the loan while she was working in Singapore.  The Board was also concerned about her delay in making the non-refoulement claims.  It was not until 24 May 2021, twenty days after her second arrest, that she raised concerns about her return to Indonesia.  The Board found her behaviour inconsistent with a person holding a genuine fear of harm in her home country and concluded that she was merely evading detection by the Hong Kong authorities for as long as she could possibly manage.  The Board was not satisfied that she had proved the factual basis of her claims for non-refoulement protection and dismissed her appeal against the decision of the Director in the Notice.

Discussion

12.The Applicant gave no specific grounds in her affirmation in support of her application for judicial review.  She only repeated that she wanted to apply for judicial review.  The Court is cognizant of the fact that a genuine claimant in her position would be bewildered, confused, frightened and could not understand the process in question.  However, she had the assistance of the Duty Lawyer in preparing her non-refoulement claim form and at the screening interview.  Given her age, education and experience, she must have been able to present her case at its best, whether at the screening interview or before the Board and had done so.  This Court shall look after her interests from point of view of a judicial review.

13.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]. Thus, in the absence of specific grounds for application, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness, irrationality, and procedural unfairness.

14.The Court was satisfied that the Board had correctly set out the four applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including  the standard of proof and burden of proof, and quoted relevant precedents in support.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice.  It correctly identified the factual and legal issues involved in the claims.  The Applicant’s claims are founded on her alleged debt owed to the loan shark and the threats the loan shark made against her and her family members.  The Decision of the Board was based on its finding of the Applicant’s credibility.  The Board carefully weighed the evidence and assessed her credibility, but found against her.  The Board found her incredible and did not accept her evidence about the threats to her life and her assertions of risks under the four applicable grounds under the USM.  As the Applicant bears the burden of prove of her claims, such a finding is fatal. 

15.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 Applicant’s 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 and irrationality.  There are no such vitiating elements in the Decision.  The Decision is utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

16.For the above reasons, leave to apply for judicial review was refused.

Dated 12^th day of January 2022.

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