Case Document

100%Judiciary

HCAL 1038/2019

[2022] HKCFI 1989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1038 of 2019

BETWEEN
	Supriyati	Applicant
	and
	Torture Claims Appeal Board / Non-Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 9 April 2019 (the “Decision”).

2.The Applicant is a national of Indonesia, now aged 29. She last entered Hong Kong on 26 March 2015 to work as a foreign domestic helper. Her contract was terminated prematurely in around April 2016 and she became an over-stayer since 30 April 2016. She was arrested on 6 May 2017 for overstaying. On June 2017, she raised a non-refoulement claim.

3.In due course, her non-refoulement claim was assessed on all four applicable grounds 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 30 November 2017, the Director rejected her claims under all four applicable grounds.

4.Her appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision dated 9 April 2019. On 17 April 2019, she applied for leave to apply for judicial review of the Decision of the Board.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that, if refouled to Indonesia, she will be harmed by her family and a loan shark for being unable to repay the debts owed by the family to the loan shark and by the Muslims in her country for being a lesbian.

6.The Applicant is an ethnic Javanese. She and her family are Muslims. She received twelve years of education. In 2014, her parents told her that they had borrowed a large sum of money from a loan shark and they wanted her to marry the loan shark to settle the debt. The Applicant refused. Her parents and the loan shark threatened to kill her if she refused to marry the loan shark.

7.Her parents locked her in a bedroom for three months and she survived on food secretly passed to her by her sister.

8.She alleged that her elder brother punched her head on a number of occasions resulting in blood clots in her brain. She was hospitalised for four days. She maintained that she required surgery but was afraid to undergo the operation and also there was no one to pay for the surgery. Hence, she never fully recovered and still suffers from headache. She did not have the courage to report the assaults by her brother and did not have the money to bribe the police for making the complaint. She also thought it would be useless.

9.With the help of her sister, she managed to escape from home. She fled to Plelen which was near her home and stayed there for about a month. During that month, her brother was looking for her and she saw him from afar. Then, she moved to Semarang and later to Hong Kong to work as a foreign domestic helper on 26 March 2015. She overstayed since 30 April 2016 after the employment was prematurely terminated.

10.The Applicant claimed that it is not safe for her to return to Indonesia because her parents and the loan shark will be able to locate her, harm her and force her to marry the loan shark. Besides, she is a lesbian and may be put in “shackles and chains” and hung under Muslim law. She is afraid that she will be killed by local Muslims. She believes the police will not protect her as they are corrupt and also because she is a lesbian.

The finding of the Board

11.The Board accepted that her parents, brother and the loan shark had made threats to her and that her brother had assaulted her on some occasions. However, the Board doubted the truthfulness of the other crucial aspects of her claims. The Board doubted the genuineness of her fear as she had never made a claim for protection until after her arrest for overstaying.

12.The Board did not accept that she suffered severe head injury from the attack by her brother. She said she had been advised to undergo surgery to remove the blood clots in her brain while she was hospitalised in Indonesia, but she refused out of fear of the surgery and lack of funds for the surgery. Her alleged injury is not supported by medical evidence whether from Indonesia or Hong Kong. The Board found it incredible that she would have refused a surgery to treat her life-threatening condition merely because of her fear of the operation. It also rejected her explanation that she could not pay for the surgery as she could have used the funds for arranging her employment in Hong Kong for the surgery instead. The fact that she never sought treatment in Hong Kong also undermined the credibility of her allegation. In any event, she admitted at the hearing that her condition was not serious. The Board, therefore, did not accept that she faced risks of harm that would exceed the required minimal level of severity. Furthermore, as four years had lapsed since she left Indonesia, the Board considered her fear of harm speculative and unreal.

13.The Board found no evidence that the pain or suffering was 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 for the government. It also found that the ill-treatment and suffering arose out of a private dispute between her and her parents and the loan shark and not any reasons protected by the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol.

14.She had not produced any evidence to support her claim that she would be killed by Muslims for her sexual preference. The Board did not accept that she would face harm for being a lesbian because it was her own evidence that she had never experienced any harm or discrimination from Muslims in her country because of her sexual preference.

15.After a comprehensive review of the available Country of Origin Information (COI), the Board found that state protection is available. Further, as an able-bodied woman with work experience as a foreign domestic helper, it would not be unreasonable to expect her to relocate to other parts of Indonesia outside her home village. Also, the Board did not accept her argument that she could not find employment outside her home village.

16.Applying the law applicable to non-refoulement protection under the USM, the Board was not satisfied that the Applicant had proved her entitlement to protection under any of the applicable grounds under the USM and therefore dismissed her appeal.

Legal principles applicable to judicial review

17.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, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

18.The Applicant put forward four grounds of application based on procedural impropriety (at paragraphs 9, 10, 11 and 13 of her supporting affirmation) and one based on misdirection in law (at paragraph 12 of her supporting affirmation). She said that the affirmation and grounds were prepared by her friend based on information provided by her but she was unable to elaborate on her grounds.

Ground (1) – Misdirection in law (paragraph 12 of her supporting affirmation)

19.Under this ground, the Applicant alleged the Board of “failing to take into account the considerations of psychological strain and threats” or direct threats to kill her. When asked to elaborate on the psychological strain and threat she suffered, she said she had written a letter to the officers in Kowloon Bay Immigration Centre on 26 May 2017 about her psychological condition.

20.Her allegation is incredible when tested against the chronology of what happened since her arrest and detention. She was arrested on 6 May 2017 and made a number written claims on 18, 19, 24, 26 May and 2, 8, 12, 13, 16, 21 June 2017, including one on 26 May 2017. She was released on recognizance on 9 July 2017. On 6 November 2017, she filed a formal NCF prepared by her with the assistance of a duty lawyer and interpreter. The Applicant said she mentioned in the NCF that “she went crazy”. However, nowhere in her NCF did she ever say she “went crazy” or mention about psychological strain. Then, she alleged that everything in the NCF was put down by the lawyer, she only signed her name and put down her address in Indonesia. That may well be so as the NCF was completed in English. However, her allegation is that she was just told to sign and there was no interpretation, as if everything was made up by the lawyer. That is a bizarre allegation which is incapable of belief. The NCF contains an interpreter’s confirmation signed by an interpreter known to the Court certifying that she had accurately interpreted the entire content of the form to the Applicant and a confirmation signed by the Applicant that the entire content of the form and all attached documents have been interpreted to her.

21.The Applicant attended a screening interview on 29 November 2017 in the presence of her lawyer and with the assistance of an interpreter. She was adamant that she had informed the immigration officer about her psychological stress and the interpreter had read out her letter of 26 May 2017, but the officer just ignored her.

22.To the Court’s knowledge, a screening interview is conducted in the presence of the claimant, his legal representative and an interpreter; the questions asked by the immigration officer and the claimant’s answers are recorded, read back to the claimant and signed by the claimant as acknowledgement that he agreed that the record is correct and he had no amendments to make or additions to add. After the hearing, the Court discovered a copy of the record of screening interview held on on 29 November 2017 from the Immigration Department. The record precisely confirmed that the above understanding is correct. The record showed no mention by the Applicant of her suffering from psychological stress or production of her letter dated 26 May 2017 complaining about the same.

23.This Court was satisfied that the Board had adequately considered the alleged assault and threat exerted on the Applicant and the usual effect such assault and threat would have on her. The Applicant had made no specific complaint about psychological ill-treatment or any adverse psychological effect the threat and assault had on her. There was no factual basis in the Applicant’s complaint about the Board’s failing to take into account the considerations of psychological strain and threats on her person.

Ground (2) – Procedural impropriety: Failure to consider if the reforms and means of relief provided by the Indonesian government is effective (paragraph 9 of her supporting affirmation)

24.The Applicant’s complaint is as follows:

“Failure to properly apply para 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, cf, the [Board] and the Director Decision which focussed on whether such reliefs showed merely signs of positive improvement (see also JKF CACV 103/2014).”

25.The Applicant is unable to elaborate on her grounds. Her complaint is that the Indonesian government will not help her. The police are corrupt and will not give her protection for she is unable to pay a bribe. Also being a lesbian, she is discriminated and her life is in danger. The sentiments in this ground is that the Board was only concerned about reforms having been made but failed to ascertain if the protection given through these reforms is effective.

26.The Board had considered authoritative and credible COI including, Human Rights in Indonesia in 2017 published by the United States Department of State (“USSD”), Country of Origin Information of Indonesia IDN36243 published by the Australian Government Refugee Review Tribunal, the Corruption Perception Index published by Transparency International, the report published by the National commission on Violence against Women, various articles, and various reports published by New York Times, The Jakarta Post, The Jakarta Globe, and Time Magazine. These COI were extensively considered in paragraphs 115 to 135 of the Decision in pages 24 to 31. In paragraph 122, the Board referred to the USSD report about the national People’s Special Economics Crime Unit, the office of the Deputy Attorney General for special crimes with jurisdiction over investigation and prosecution of corruption cases, the anti-corruption courts, the Corruption Eradication Commission with power to investigate and prosecute government officials at all levels who are suspected of corruption and the National Ombudsman’s Commission charged with the authority to handle complaints against government officials. This Court is satisfied that the Board had properly considered the Indonesian government’s reforms in combating corruption, improving police efficiency and effectiveness, protecting women’s rights, etc and was satisfied with their effectiveness.

Ground (3) – Procedural impropriety: Failure to conduct sufficient inquiry into the relevant COI (paragraph 10 of the supporting affirmation)

27.For reasons as given in the above paragraph, this Court is satisfied that the Board had properly considered the relevant COI. The Applicant was unable to point to any inadequacy of the Board in this regard.

Ground (4) – Procedural impropriety: Failure to [give] reasons for assessment of Lack of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk (paragraph 11 of the supporting affirmation)

28.The Board referred to the legal principles applicable to BOR 3 risk in paragraphs 29 to 42 at pages 6 to 9 of the Decision. In paragraphs 169 to 177 at pages 35 to 36 of the Decision, it correctly identified the issues which the Applicant needs to prove to establish a claim under BOR 3 risk ground, namely that the ill-treatment which she would face if she was returned to Indonesia would attain a minimum level of severity and that she faced a genuine and substantial risk of being subjected to such treatment. For reasons as explained in paragraphs 88 to 114 at pages 19 to 24 of the Decision, the Board was not satisfied that the Applicant had proved the factual basis of her claim to protection under this ground. In addition, the Board also found that this risk is reduced by reason of availability of state protection and internal relocation. All these are finding of facts solely for the Board to make. This would be reconsidered in the Court’s overall scrutiny of the Board’s Decision.

Ground (5) – Procedural impropriety: Failure consider the Applicant’s fear (paragraph 13 of the supporting affirmation)

29.Essentially for the same reasons as given in the above paragraphs, this Court was satisfied that the Applicant’s fear had been adequately considered by the Board, not just in respect of BOR 3 risk, but also in respect of the other three risks. These are finding of facts for the Board, which this Court would reconsider in an overall scrutiny of the Decision.

Overall scrutiny of the Board’s Decision

30.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. This conclusion was further supported by availability of internal relocation. There was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 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 unless such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

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

Dated the 30^th day of June 2022.

( Allen LEE )
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 30/6/2022 Supriyati Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/6/2022 Torture Claims Appeal Board / Non-Refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9557/17/12/224/I942 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3047/17 (formerly RBCZ 11212/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

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)

Cites 2 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration