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

HCAL 256/2019

[2022] HKCFI 179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 256 of 2019

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 (the “Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 24 January 2019. 

2.The Director of Immigration (the “Director”) is named as a proposed respondent, but the Applicant did not specify the decision to which her application is related.  By the Decision, the Board dismissed the Applicant’s appeal against the decision of Director contained in a Notice of Decision dated 14 December 2017 refusing her application for non-refoulement protection (the “Notice”).  Presumably, that is the decision to which her application is also related.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory 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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board as well.  

3.The Applicant is an Indonesian national.  She first arrived in Hong Kong in March 2011 and last arrived on 6 May 2011 when she was permitted to remain to take up employment as a foreign domestic helper until 23 July 2012 or two weeks after the termination of her employment, whichever the earlier.  Her employment contract was terminated on 21 May 2011.  She did not leave within two weeks of the termination of her employment.  She was arrested by the Police on 23 September 2011 and referred to the Immigration Department. She was prosecuted and convicted of the offence of breach of condition of stay and sentenced to one month’s imprisonment, suspended for two years.  A removal order was issued and served on her on 21 October 2011.  She appealed against the order and her appeal was dismissed on 3 November 2011.  In the meantime, on 24 October 2011, she lodged a torture claim by way of written representation.

4.In due course, her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].

5.The Director rejected her claim by the Notice.  She appealed to the Board against the decision of the Director in the Notice.   Her appeal was dismissed by the Board on 24 January 2019.  On 28 January 2019, she applied for leave to apply for judicial review of the Decision of the Board.

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in her two written representations, her non-refoulement claim form (“NCF”) prepared by her with assistance of the Duty Lawyer Service and the record of her screening interview with an immigration officer.

7.The Applicant is an Indonesian woman, aged 37.  She received nine years’ education.  She is single.  She has one brother.  She has lost contact with her parents and brother.  She had worked as a shopkeeper between 2001 and 2008 and then as a domestic helper in Singapore.  She worked as a foreign domestic helper in Hong Kong from 2011 to 21 May 2011.

8.In her NCF, she alleged that in around mid-2007 she borrowed 70 million Indonesian rupiah from a well-known loan shark called “Jono” to assist her father in setting up a brush and broomstick-making business.  She provided the land certificate of her family home as collateral.  Under the terms of the loan agreement, she and her father had to pay monthly interest equivalent to 30% of the loan and 50% of her father’s business profit.  They had to make the repayment within one year, otherwise the repayment amount would be increased to 140 million rupiah. 

9.Her father commenced business in the month following receipt of the loan.  The Applicant worked in a convenience store as a shopkeeper earning 700,000 rupiah per month.  She contributed 500,000 to one million rupiah towards the repayment.  She and her father were able to make the repayment in a timely manner until mid-2008 after which her father’s business declined.  The Applicant continued paying her contribution but her father did not. 

10.Then, Jono went to the Applicant’s home to demand payment.  He scolded the Applicant and told her father that she should marry him to settle the loan and if she did not he would kill her father. The Applicant’s father was inclined to settle the loan in that way, but the Applicant did not wish to marry Jono as he already had two wives and was of middle age.  Jono came two to three times per week demanding repayment.  He beat her father and elder brother to vent his anger and repeated his demand that the Applicant should marry him.  The Applicant was worried and fell ill.  She was unable to continue working in the convenience store and unable to find alternative employment or repay the loan.  She did not report to the police for fear of Jono.

11.In 2009, Jono’s wife who owned an employment agency suggested the Applicant to work as a domestic helper in Hong Kong so that she could repay the loan.  The Applicant agreed. Before coming to Hong Kong, the Applicant had incurred administrative fees to Jono’s wife for training and travel arrangements.  She had to repay $3,000 every month for seven months from her salary to repay those fees.  She also paid $500 towards repaying the loan from Jono.  Unfortunately, her employment was terminated after three months and she could not find any further employment to repay Jono or his wife.  Jono’s wife reported the matter to the police in Indonesia.

12.While the Applicant overstayed in Hong Kong, her family informed her that the police had come to her house as a result of the complaint from Jono’s wife about her default in repaying the administrative fees.  Her parents also urged her to repay Jono. Because of pressure from her parents, the Applicant broke up connections with them and her elder brother.  She did not know their whereabouts and whether they are alive.

13.The Applicant believed that it would be impossible for her relocate to other parts of Indonesia because she had no experience of doing so and had no friends or relatives in other parts of Indonesia.  She believed she could not obtain police protection because Jono had a broad network of connections in Indonesia.

The finding of the Board

14.On the basis of available Country of Origin Information (“COI”), the Board accepted that loan sharking activities were common in Indonesia.  However, the Board did not find the Applicant a truthful witness and did not accept her evidence.  It found the Applicant’s evidence during the oral hearing vague and inconsistent with earlier aspects of her evidence to the Immigration Department: see paragraphs 38 to 52 of the Decision.  The Board said at paragraphs 53 to 55 of the Decision:

“53. I am satisfied, therefore, having regard to all of the circumstances, it is both reasonable and not unduly harsh for the [Applicant] to return to another part of Indonesia should she have any fear of harm from a loan shark.

54. Having regard to all of the evidence, I do not accept the truthfulness of any of the [Applicant’s] claims. I do accept that she at any time borrowed money from a loan shark called Jono or that she established a business or defaulted on the repayment of the loan to Jono. I do not accept that she or her father or other family members were at any time harmed or threatened by Jono and/or his associates. Nor do I accept that the [Applicant] genuinely fears harm from Jono or his associates if she returns to Indonesia. I consider that she has lodged this application in an attempt to remain in Hong Kong for reasons unrelated to those she has put forward.

55. Accordingly, I am not satisfied that if the [Applicant] is removed from Hong Kong to Indonesia that there are substantial or strong grounds or a real chance or a real risk that she will suffer harm amounting to torture, CIDTP/torture, a risk to her life or persecution from a loan shark or his associates.”  

15.The Applicant bears the burden of proving the facts in support of her claims under the four applicable grounds under the USM.  The centrepiece of her claim is the loan from Jono on which the demand and threats are based.  Having found her not a truthful witness, the Applicant failed utterly in proving the factual basis, ie the fear and harm, to launch her claims for non-refoulement protection under the four applicable grounds.  This is the primary basis of the Board’s Decision in dismissing her appeal against the Notice.

16.In addition, in respect of Torture Risk ground, having considered the COI, the Board found internal relocation available to avoid the risk and harm, even if they were real.  It also found in the further alternative that any harm which might be inflicted on the Applicant would not be for any of the reasons set out in the definition of “torture” under section 37U of the Immigration Ordinance because there is no evidence that the harm would be inflicted by or at the instigation of, or with the consent or acquiescence of a public official or other person acting in an official capacity.

17.To prove BOR 3 Risk ground, the Applicant must establish that there are “substantial grounds for believing” or “strong grounds” for believing that if removed from Hong Kong she would face a “real risk” of being subjected to torture, cruel, inhuman or degrading treatment or punishment.  The Applicant has failed to prove the risk and harm, let alone to the very high threshold required under this ground.

18.In respect of BOR 2 Risk ground, the Board held that based on the above founding of fact, the Applicant has failed to establish there is a real risk of danger against her life from the Jono should she be refouled.

19.In respect of Persecution Risk ground, the Applicant must prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”).  On the Applicant’s case, the reason for her persecution arose out of her inability to repay her loan in a moneylending transaction and not for any of the Convention reasons.  Her claim falls outside this ground.

20.Accordingly, the Board dismissed her appeal against the decision of the Director in the Notice of Decision.

Grounds for judicial review

21.In her affirmation filed in support of her application, the Applicant exhibited the Director’s Notice and the Decision of the Board and some documents from the hearing bundle placed before the Board. Obviously, she disagreed with those decisions, but she did not put forward any specific grounds in support of her intended application for judicial review. Presumably, she is seeking to challenge the Board’s conclusion and finding of fact. 

22.In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to Indonesia.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.  

23.The function 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 scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. 

24.When assessing her credibility, the Board have regard to the loan sharking activities in Indonesia, the relevant factors which may be taken into account as damaging the credibility of the applicant as set out under section 37ZD of the Immigration Ordinance, the Principles, Procedures and Practice Directions of the Board, the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme.  It also had regard to judicial guidance in terms of the potential difficulties faced by asylum seekers and acknowledged that decision makers should adopt a reasonable approach in terms of making findings with regard to credibility.  It gave allowance to the Applicant’s failure to recall dates due to lapse of time.

25.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 had 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. 

26.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicant’s claim was not reasonably arguable.  There was no realistic prospect of success.

Conclusion

27.For the above reasons, the Court refused the Applicant’s application for leave to apply for judicial review.

Dated 19^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

[1][1] [2018] HKCA 549

[2] 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

[3]  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”)

[4]  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

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