Nani-kuraesin-bt-usin-usen v. Torture Claims Appeal Board

HCAL 24/2019

[2022] HKCFI 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 24 of 2019

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 Bruno Chan:

Leave to apply for judicial review granted.

Observations for the Applicant:

1.The Applicant is a 39-year-old national of Indonesia who arrived in Hong Kong in 2014 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but after her last employment was prematurely terminated on 2 January 2017, she did not depart at the end of her extended stay on 13 February 2017 and overstayed in Hong Kong, and on 15 February 2017 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by a loan shark over her outstanding loan. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Bandung, West Java, Indonesia. After leaving school she ran a restaurant in her home district, got married and raised a family with 3 children.

3.For the purpose of maintaining her restaurant business, the Applicant in 2009 borrowed a loan from a local loan shark repayable by monthly instalment with interest. However, when she was unable to keep up with her loan repayment, the loan shark came to make threats against her and took things from her restaurant.

4.To avoid further threats and harassments from the loan shark, the Applicant in 2010 left the country to work as a domestic servant in various places including Saudi Arabia, Dubai and Singapore before coming to Hong Kong in 2014 to work as a foreign domestic helper, but when her last employment was terminated on 2 January 2017, she was afraid to return to Indonesia and therefore overstayed in Hong Kong and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 9 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would be in danger of being harmed or killed by the loan shark upon her return to Indonesia due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 260 million people spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for the loan shark to locate her.

7.On 22 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 28 September 2018 before the Board during which she adopted the materials and information provided in the hearing bundle for her appeal but elected not to answer any question from the Adjudicator for the Board. On 24 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found in the absence of any answer from the Applicant to questions that it would have raised with various issues regarding her claims had she participated in the hearing that it was unable to make findings in her favour whether she would face a real risk of harm form the loan shark or whether she could access state protection or internal relocation upon her return to Indonesia that it rejected her non-refoulement claim as not substantiated on all applicable ground.

9.On 4 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in a written submission dated 27 July 2021 she put forward the following grounds for her intended challenge:

(1)  that the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement;

(2)  that the Board was in breach of procedural fairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  that the Board was in breach of procedural fairness in its decision to refuse her appeal which was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  that the Board was in breach of procedural fairness in failing to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which had resulted in making groundless speculation that it would be safe for her to return to her country of origin; and

(6)  that it was procedurally unfair that the hearing bundle was not provided to her earlier with the majority of the documents in English thereby given her insufficient time to prepare for her appeal or to find an interpreter to assist her in better understanding of those documents due to her limited skill in English and lack of understanding of the law that caused her confusion in her appeal before the Board.

10.These are however mostly just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner, or what COI were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge, except for Ground (3) in which she complains that the Board’s decision in dismissing her appeal as unreasonable or irrational.

11.While the Applicant did not provide any further details or particulars or elaborations as to why she complains that the decision in dismissing her appeal was unreasonable or irrational, it is of note that the Board’s reasons for its decision were essentially her refusal to participate in the hearing to answer questions which the Board would have raised with her in order to be able to make findings as to her credibility, but that without which the Board was unable to make findings in her favour whether she would face any real risk of harm from her creditor, as the Board explained in the decision as follows:

“29. As noted above, at the hearing, the Appellant told me she did not want to answer any questions. She wanted to rely on the information in the Bundle. I clarified with her there was no new information and there were no known errors in the Bundle she wished to correct. I told her I had queries about her claims and if she chose not to address those with me, it was unlikely I would reverse the Decision. She told me she understood and still did not want to answer any question and wanted to rely on the information in the Bundle.

30. I consider it is for the Appellant to decide whether or not to take the opportunity to participate in the hearing. I draw no negative inference from her decision not to answer my questions regarding her claims. In saying that, the Appellant’s non-participation means I have not had the opportunity to discuss with her issues that arose from the material in the Bundle.

31. Those issues include the details why the Appellant borrowed the money, how she calculated the amount she needed to borrow and what she used the loan for. I would have noted the passage of time since the Appellant got the loan. I would have sought an explanation as to how she could still owe the money to the loan shark from 2000 when she has been working overseas from 2010 to 2017. I would have expressed my concern she does not know how much money she woes. I would have noted the evidence before me is very vague about the loan shark threatening the Appellant’s husband or children regarding repayment of the loan. I would have queried why in the NCF she claims she got the loan in 2000, but at the interview she said she got the loan in 2009. I would have asked how she lost contact with her family, yet was also sending money to her children to repay the loan shark. And similarly, why her family would think she is dead if she is still sending money to them. I would have asked what efforts the Appellant made to re-establish contact with her family. I would have noted the news report she provided and clarified the loan shark was not the person named in that report and if he is not, how that news report is relevant to the personal circumstances of the Appellant.

32. The Appellant’s comments and responses to these issues would have allowed me to make findings as to her credibility. As those issues remain unresolved, on the balance of the evidence before me, I am not able to be satisfied regarding the credibility of the Appellant’s claims and I am not able to make findings in her favour.

33. Had the Appellant participated in the hearing, I would have discussed too the issues of state protection from the Indonesian authorities and whether the Appellant would face undue hardship or it is reasonable for her to internally relocate to another area of Indonesia, perhaps to a large population centre such as Surabaya which is far away from the hometown of the Appellant.

34. As those issues too remain unresolved, on the balance of the evidence before me I am not able to make findings in favour of the Appellant whether she faces a real risk of harm from the loan shark as the Appellant may be able to access state protection and/or it may be reasonable for the Appellant to access internal relocation.

35. I have considered the claims of the Appellant individually and cumulatively, as well considering the personal circumstances of the Appellant. On the credible evidence before me, I do not consider the Appellant faces a real risk of Proscribed Harm from the loan shark if the Appellant is refouled to the Risk State.”

12.On these bases the Board concluded in its decision that the Appellant had failed to establish her claim under each of the applicable grounds, and rejected her non-refoulement claim and confirmed the Director’s decision.

13.While the Board was certainly entitled to raise all those issues referred to above with the Applicant at the appeal hearing in its assessment of the credibility of her claim, and when the Applicant elected not to answer any questions regarding those issues, of which the Board did, as noted above in its decision, explain to her at the hearing that it was for her to decide whether or not to take the opportunity to participate in the hearing, and that it would not draw any negative inference from her such decision as regard her claim, yet it appears that the Board did exactly that in its decision by refusing to make findings in her favour whether she would face a real risk of harm from the loan shark because those issues had remained unresolved, of which the Board in fact could have, and should have, proceeded to make its findings on the basis of the information and materials previously submitted by the Applicant to the Director and in the Hearing Bundle available before the Board, and which the Applicant did confirm her reliance thereof for her appeal, and that if the Board did find, on the basis of such materials, that the Applicant would not face a real risk of harm from the loan shark, it seems to me that it did not give any or sufficient reasons for its such decision.

14.It is clearly stated in The Practice and Procedural Guide of the Administrative Non-Refoulement Claims Petition Scheme (“Petition Guide”), September 2016, that in determining whether a claim is substantiated and hence non-refoulement protection is to be granted to an applicant, the Adjudicator must in having regard to the individual circumstances of each case take into account all relevant considerations including relevant country information and whether there is any region within the Risk State in which the applicant would not be subjected to a risk under any applicable grounds ([21.1]).

15.In Re Hidayah [2018] HKCA 595, where the Board for similar reasons dismissed the appeal on all applicable grounds due to the applicant’s failure to attend the hearing and hence it was unable to determine the credibility of her claims, as it was of the view that in the absence of oral evidence from the applicant it was unable to determine whether there was a real risk or there were substantial grounds for believing that she would suffer the harm she claimed to fear if refouled to her home country.

16.On the applicant’s subsequent appeal against the court’s refusal to grant leave for her to apply for judicial review of the Board’s decision, the Court of Appeal in allowing the appeal held that the Board had failed to give or had given insufficient reasons for dismissing her appeal, as Chu JA in giving judgment of the Court stated:

“15. The Board decided the appeal against the applicant because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the Director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead to a dismissal of the appeal. As we understand the Board’s reasons, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.

17.We are of the view that the applicant’s complaint that the Board had failed to give, or had given insufficient, reasons for dismissing her appeal against the Director’s decision is an arguable ground, and that leave to apply for judicial review should be given on this ground.”

18.In the present case, the Board had clearly also taken into account the materials in the Hearing Bundle (see [8] and [29] of the Board’s decision), and upon the Applicant confirming and adopting those materials for her appeal but electing not to answer questions from the Adjudicator, I am of the view that it is reasonably arguable that the Board in subsequently dismissing her appeal because it was unable to make findings in her favour whether she would face a real risk of harm from the loan shark, the Board had failed to give any or sufficient reasons for its decision, and thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

19.In the premises, and for the reasons given, I grant leave to the Applicant to apply for judicial review of the Board’s decision on the basis as stated above, and pursuant to Order 53 rule 5 of the Rules of the High Court, I direct that the Applicant shall accordingly file an originating summons within 14 days of this decision, and shall serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

Dated the 23^rd day of June 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