Sofiatun v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 446/2019

[2022] HKCFI 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 446 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 an unidentified decision made on 28 December 2017.  In her supporting affirmation, she attached a copy of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 1 November 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 December 2017 (the “Notice”) refusing her application for non-refoulement protection.  It would only make sense if her application is treated as an application to apply for leave to apply for judicial review of the Decision of the Board dismissing her appeal against the decision of the Director in the Notice.  After ascertaining that that was indeed her intention, leave was granted for her to amend her Form 86 as above. 

2.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  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].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 his complaints against the Director as directed at the Board also.  

3.By the time her application was filed, more than three and half months had lapsed since the date of the Decision.  The application is out of time by about three weeks.  Allowing her the benefit for her disadvantaged position as an asylum seeker in foreign soil, the Court was prepared to condone her delay provided she can show an arguable ground for judicial review.

4.The Applicant is an Indonesian national, now aged 45.  She had previously worked in Hong Kong as a foreign domestic helper. She last arrived in Hong Kong on 11 February 2014.  After her employment was terminated on 19 March 2015, she was granted permission to stay as a visitor until 8 April 2015.  She overstayed thereafter.  She was arrested by the police on 19 August 2015.  Then she lodged her application for non-refoulement protection by written representation dated 1 September 2015, claiming that she is at risk of being killed by her husband and two loan sharks, if returned to Indonesia.

5.In due course, her non-refoulement claims were 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].  Her claims were rejected by the Director’s Notice.  Her appeal against the Notice was dismissed by the Board’s Decision dated 1 November 2018.   She now seeks to apply for judicial review against the Decision.

The applicable legal principles     

6.The role 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.  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].

The Applicant’s case for protection

7.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. 

8.The Applicant is married with two children.  She borrowed 50 million Indonesia Rupiah from a loan shark whose name she could not recall.  She had to pay interest at the rate of 100,000 rupiah per million rupiah.  She was unable to repay the principal or the interest.    

9.When her husband learned about the loan, he demanded her to borrow a second loan for his gambling.  She refused.  Then her husband abused her and threatened to kill her and beat their first child.  He repeated his demand virtually every night until eventually the Applicant gave in.  She borrowed a second loan from another loan shark but could not now recall his name.  After giving birth to her second child, her husband made her work in the rice field.  She was weak and fell unconscious.

10.A week after borrowing the second loan, the second loan shark sent a gangster to her house to collect payment.  She was unable to pay.  The gangster threatened to kill her if she could not pay the next time he came.

11.The Applicant then went to work in Hong Kong as a foreign domestic helper in 2005.  She went back to Indonesia in 2009 and again in 2011.  On those occasions, she stayed in her relatives’ home and did not see her husband or children.  She was afraid to go back to Indonesia.  She said she had now divorced from her husband and remarried.

The Decision of the Board

12.The Board assessed her claims on the basis of the case as asserted by the Applicant. 

13.In respect of her claim under Torture Risk ground, the Board found she had not been inflicted with any serious pain or suffering within the definition of “torture” under section 37U of the Immigration Ordinance; that her husband was unemployed and not a government official; and that the loan sharks had not caused her any injuries and were not government officials.  The Board therefore found that the Applicant has no real risk of torture upon her return to Indonesia and on the basis of the Country of Origin Information (“COI”) state protection is available.

14.For similar reasons, the Board found the intensity and frequency of past ill-treatment to the Applicant to be low.  The Applicant only had one bitter experience with the loan sharks.  On that occasions, the loan sharks were not carrying any weapons and she did not receive any physical harassment.  On the basis of the COI, the Board was satisfied that state protection of a sufficient standard is available to the Applicant and that she could also avoid the harm by internal relocation. Hence, it refused her claim based on Torture Risk ground.

15.For similar reasons, the Board found that the Applicant’s husband and the loan sharks had not inflicted any serious injuries on her.  Hence, it concluded that it is unlikely that the Applicant would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3 Risk ground which requires that the ill-treatment must attain a minimum level of severity.  Besides, the Board found that state protection is available to prevent the risk.  Hence, the Board dismissed her claim under BOR 3 Risk ground.

16.It is clear that the Applicant’s case does not engage BOR 2(ii) to (iv) Risk ground which is related to death sentence and genocide.  The Applicant also confirmed in her answer to Question 52 in the NCF that there were no other reasons why she could not be returned to Indonesia.  Hence, the Board dismissed her claim under BOR 2 Risk ground.

17.The Board consider the Applicant’s disputes with her husband or the loan sharks are private in nature and her feared ill-treatment is not on account of a reason protected under the 1951 Convention relating to the Status of Refugees, namely for reasons of race, religion, nationality, membership of a particular social group or political opinion.  Hence, it dismissed her claim based on Persecution Risk ground.

Grounds of the intended Judicial Review

18.The Applicant did not state her grounds for the intended judicial review in her Form 86 or supporting affirmation.  In reply to the Court’s request for submission she advanced the following eleven grounds for judicial review:

(1)   “The [Board] is required to consider afresh the original decision and arrive at [its] own determination”;

(2)   The Decision is unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness;

(3)   “The [Board] had unlawfully fattered (sic) its discretion by refusing the Applicant’s appeal on the grounds that they didn’t satisfy with the requirements”;

(4)   The Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   The Board acted in a procedurally unfair manner in dealing with the appeal;

(6)   “It must be keep in mind that “the life and limb are in jeopardy and the Applicant’s fundamental human rights not to be subjected to torture in involved”;

(7)   “In dismissing the applicant’s appeal/petition, there is no indication that the [Board] interacted with the facts of the Applicant’s claim, conducted any analysis of the supporting documents or turned his mind to the ground under consideration being the risk of violation of the Applicant’s right to life under BOR 2”;

(8)   “The Applicant will face hardship if he (sic) is to return to his (sic) home country and that the [Board] has significantly relied on source of news which is not officially recognized, or it is simply hearsay;

(9)   “The characterisation of the appeal process is grounded in the consistent practice of the [Board] in treating each appeal/petition as a de novo hearing, whereby the [Board] is not confined to any grounds of appeal put forward, but considers all the facts of the claim afresh to come to its own findings.  The established practice of the [Board] in this regard is either grounded and illustrative of its relevant obligations and/or in any case has induced a procedural expectation that a claim would be considered afresh under applicable grounds”;

(10)    “The [Board] has relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in them (sic) making groundless speculation”; and

(11)    “In spite of the Applicant’s problems in his (sic) home country are very severe and he (sic) had already submitted all the documents on behalf of the Applicant’s claim.  The [Board] may not be greater caring and made the claimant disappointed.”

19.Some of these grounds are not entirely comprehensible.  They are therefore quoted verbatim for what they are worth.  At the hearing, the Applicant was asked to expand and explain the meaning of these grounds.  She said she did not understand the grounds and that they were prepared by someone for her but not on the basis of the information provided by her. 

Ground (1), (6) and (9))– Statements of legal principle

20.Insofar as these grounds could be understood, they are statements of legal principle.  There is no indication in what respects was the Board in breach of these principles. The Applicant was unable to clarify and give particulars.  The Court could only bear these principles in mind in its overall examination of the Board’s Decision for errors in law, procedural unfairness or irrationality.

Ground (2) – errors in law, procedural unfairness or irrationality; Ground (4) – breach of greater duty of care owed to the unrepresented Applicant; Ground (5) – procedural unfairness

21.These are un-particularized complaints.  The Applicant was unable to give particulars of the errors, unfairness or irrationality.  The Court could only bear these principles in mind in its overall examination of the Board’s Decision for errors in law, procedural unfairness or irrationality.

Ground (3) – The Board unlawfully fettering its discretion

22.Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement for non-refoulement protection.  This could not be a valid ground for application for leave.  If the Applicant did not satisfy the requirements for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss her appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  The Applicant was unable to give particulars as to how the Board unlawfully fettered its discretion.  Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (7) – The Board failed to interact with the Applicant’s case

23.The Applicant gave no particulars as to how the Board had failed to interact with her case.  The Board in fact assessed her claims on the basis of her case as asserted by her.  In other words, the Board interacted “fully” with her case.  It was only when applying the law to her case as she asserted that the Board found she is not entitled to protection under any of the grounds under the USM.  There could be no valid complaint under this ground.

Grounds (8), (10), (11) – Hardship if returned, the Board relying on outdated COI

24.These are challenges against the finding of fact by the Board which is a matter solely within the province of the Board.  As explained above, the primary decision-makers in a claim for non-refoulement protection 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. 

25.An obvious basis of the Applicant’s complaint is the Board’s reliance on the COI when making its finding that state protection of a sufficient standard is available to prevent or minimise the risk and that internal relocation is available to enable the Applicant to avoid the risk altogether.   The Applicant alleged that the COI are outdated, are hearsay and not officially recognised. The COI relied on by the Board are all from authoritative and credible sources, including Country Report on Human Rights Practices 2015 – Indonesia, Indonesia 2016 Crime and Safety Report 2014 and Report on International Religious Freedom of Indonesia published by the Department of States of the United States; The World Factbook for Indonesia published by the Central Intelligence Agency of the United States; Report from The Indonesian Corruption Eradication Commission (KPK), information from the website of Portal Nasional RI – Indonesia Police and Report by the International Organization for Migration (2014). 

26.The information is contemporaneous and not outdated.  Having regard to the nature of the information, it must contain an element of hearsay.  The people responsible for compiling and publishing the information are usually people acting under a duty owed to public authoritative bodies to provide reliable information.  The information is credible.  Furthermore, the Board had carefully considered and weighed the information.  As for the weight to be given to the COI, it is a matter for the Board having regard to the nature of information, the circumstances the information was obtained etc.  It is a finding of fact solely within the province of the Board.

27.Other than a bald assertion of unreliability, outdated information and hearsay, the Applicant provided no particulars, not even any hint, as to what are untrue, not to mention her failure to provide any publication contradicting these COI.  This ground is a challenge of the Board’s finding of fact which is not open to the Applicant unless the finding is vitiated by error of law, procedural unfairness or irrationality.  The Court would consider this issue in its overall examination of the Decision.

Assessment of the grounds for judicial review

28.As the Applicant has not advanced any grounds for judicial review, the Court could only focus on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality.  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 issues; the burden of proof and standard of proof; and correctly identified the issues.  The Board observed a very high standard of fairness.  The Board found that the Applicant failed to discharge her burden of proving her fears and risks.   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.  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.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  Accordingly, the Applicant has no arguable grounds for her intended judicial review.

Conclusion

29.The Applicant’s delay in making the application was not substantial but she could offer no reasonable grounds for her intended judicial review.  Her intended judicial review has no prospect of success.  To allow her to proceed to challenge the Decision when there is no prospect of success is by itself an abuse of legal process and will occasion prejudice to the intended respondent.  Accordingly, her application for leave to apply out of time will not be given and her application for leave to apply for judicial review of the Decision of the Board (as amended) is refused.

Dated 16^th day of March 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]  [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

[6] [2018] HKCA 524 at para 14(1)