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

HCAL 2612/2018

[2022] HKCFI 2529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2612 of 2018

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:

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 / the Non-Refoulement Claims Petition Office (the “Board”) dated 29 October 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 March 2018 (the “Notice”). Though she named the Director as a putative respondent in her supporting affirmation dated 20 November 2018, no relief was sought against any decision of the Director.

2.The Applicant is an Indonesian national, now aged 45.  She last entered Hong Kong on 9 October 2014 to work as a foreign domestic helper.  Her contract was terminated prematurely but she did not leave Hong Kong within the prescribed period.  She overstayed and surrendered to the authorities on 27 April 2015.

3.On 1 September 2015, she raised a non-refoulement claim.  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 the Notice dated 5 March 2018, the Director rejected her claim under all four applicable grounds.

4.She appealed against the decision of the Notice.  Her appeal was dismissed by the Board’s Decision.  On 20 November 2018, she applied for leave to apply for judicial review of that Decision.  She did not request an oral hearing.  Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application 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 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 she would be harmed or killed by a woman moneylender (the “Moneylender”) because she was unable to repay her loan owed to the Moneylender; and by her father for having given the title deeds of her parents’ family house to the Moneylender as collateral for her loan.

6.The Applicant was born in East of Java, Indonesia.  She married her husband in 1995 and has two daughters.  Her family used to reside in Indonesia. She had nine years of formal education and nine years of working experience as a domestic helper in Hong Kong.

7.In 1996, the Applicant and her husband borrowed 300 million Indonesian rupiah from the Moneylender for a term of three years at a total interest of 30 million rupiah to build a house for their family.  She gave the title deeds of her parents’ house to the Moneylender as collateral without her parents’ knowledge.  She only managed to pay 30% of the agreed monthly repayment in the first 3 or 4 months.  After that, she was unable to make any repayment because her husband lost his job.  The Moneylender went to her home with a man and said she would confiscate the Applicant’s parents’ house and kill her family, if she and her husband failed to repay.  The Applicant promised to repay once she secured a job.  Then the Moneylender and her man left.

8.The Applicant and her family moved to Jakarta to seek employment opportunities in order to repay the Moneylender.  There, she informed her parents about the title deeds.  Her father threatened to kill her if she did not repay the loan.

9.In 1998, the Applicant left Jakarta to work as a foreign domestic helper in Singapore and returned in 2000.  Her husband did not have a stable job.  They were unable to make enough money in Jakarta to repay the Moneylender.  The Applicant gave birth to their second child in 2003.  Then, she and her family relocated to Borneo as her husband was unable to find a stable job in Jakarta.  In December 2008, the Applicant left her children to the care of her grandmother in Ponorogo in East Java and went to work as a foreign domestic helper in Hong Kong.

10.The Applicant made five remittances to her husband to give to her mother to repay Moneylender.  In January 2014, she returned to Ponorogo and stayed with her family for two months.   Her mother told her that the Moneylender had been to her mother’s home and took away all valuable items there.

11.The Applicant returned to Hong Kong in March 2014 to continue her employment.  She lost contact with her husband.  Her children went to stay with her mother in her home village.

12.When her employment was terminated on 7 April 2015, the Applicant continued to stay in Hong Kong with a view to finding a new job.  She became an over-stayer.  She was afraid of returning to Indonesia because of the threats from the Moneylender and her father.  She learnt about non-refoulement protection in Hong Kong and made a claim for such protection.

13.Her mother told the Applicant that the Moneylender had visited her parents from time to time since 1998 and continued visiting them after she had lodged her non-refoulement claim.

14.The Applicant did not believe the Indonesian police would protect her because they are corrupt and also because her troubles stemmed from her inability to repay a loan.  She also said internal relocation would not be possible because she wanted to stay close to her parents.

The finding of the Board

15.Having reviewed the hearing bundle including the NCF, the record of the screening interview, the Notice and the Country of Origin Information (“COI”), the Board considered it necessary to convene an oral hearing.  At the hearing, the Board explained to the Applicant that it had concerns about aspects of her claims and credibility of those claims based on its consideration of her NCF and the record of screening interview and wished to obtain further information and evidence from her about her claim.  It invited her to answer questions as to those concerns, but the Applicant refused to give evidence or to take the oath or make an affirmation.  She said she had provided the information and her answers in the hearing bundle and confirmed that she did not wish to provide any further evidence in support of her claim.  Then the Board informed her that in those circumstances it would proceed to make a decision in relation to her claim on the basis of the information, evidence and materials in the hearing bundle.

16.There are many obvious gaps in the Applicant’s case as summarised above.  The Board wished to ask her questions including the lack of independent corroboration of the alleged loan, the reasons for not raising a claim for protection until she had become an over-stayer, her apparently peaceful relocation to Jakarta, Borneo and Ponorogo without any harassment by the Moneylender, her dealings with the Moneylender and her husband, issues relating to availability of state protection and viability of internal relocation in Indonesia.

17.In assessing her credibility, the Board had regard to paragraph 14 of the Principles, Procedures and Practice Direction of the Board and paragraph 17 of Practice and Procedural guide of the Administrative Non-Refoulement Claims Petition Scheme about credibility of the claimant.  It had regard to consistency of the Applicant’s evidence about her claims and other matters and the issues it wished to discuss with the Applicant.  It also had regard to the COI and the submissions by her legal representative.  After considering the totality of the available evidence, the Board was not satisfied as to the credibility of aspects of the Applicant’s claims.

18.The Board accepted the personal background of the Applicant and the COI in the hearing bundle.  It did not accept her claims that she and her husband had borrowed money from the Moneylender and were subsequently threatened with harm by the Moneylender; that she feared harm from the Moneylender and her father; that she relocated with her family in Indonesia on occasions to avoid the harm from the Moneylender; that the Moneylender continued to look for her and was seeking repayment of the claimed loan; and that she could not relocate or obtain reasonable level of state protection if she returned to Indonesia. The Board examined authoritative and credible COI and was satisfied that the Applicant could have access to adequate state protection and could relocate to places such as Jakarta or Surabaya city to avoid the harm and risk of harm.

19.Applying the law applicable to non-refoulement protection under the USM to the limited facts presented by the Applicant, the Board found she had failed to prove the factual basis to support her claim for protection under any of the four applicable grounds under the USM.  It therefore upheld the decision of the Director in the Notice and dismissed her appeal.

Legal principles applicable to judicial review

20.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[5].

Grounds for judicial review

21.The Applicant had not advanced any grounds of judicial review in the Form 86 other than that she was not satisfied with the Decision.  In her supporting affirmation she asserted that she did not want to go back to her home country because her life is in danger there.  She had been invited by the Court via its letter dated 10 February 2021 to advise the Court of her first language and telephone number and to file submissions.  She did not respond.  The letter was sent to her at her address as stated in her Form 86 and her supporting affirmation filed on 20 November 2018.  The delivery service of Hong Kong Post is usually very reliable.  The letter has not been returned through the post.  She never informed the court of her change of address.  There was nothing to suggest she had moved or had not received the letter.

Discussion and conclusion

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 disagreed with the finding of the Board that it is safe for her to return to her home country.  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. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

23.The only issue which the Court felt concerned is whether the high standard of fairness had been observed by the Board when it made an adverse decision against the Applicant without hearing her explanation.  As summarised in paragraphs 16 to 18 above, having read the papers, the Board had concerns about aspects of the Applicant’s claims and credibility of those claims and scheduled a hearing to give the Applicant the opportunity to address the Board’s concerns.  It explained the concerns to the Applicant and invited her to discuss those concerns by giving evidence.  The Applicant obviously understood the Board’s concerns, but made an unequivocal refusal to give evidence.  She insisted that all the evidence was in the hearing bundle.

24.While the host country is under a duty of joint endeavour to assist the Applicant in establishing her case, it remains the Applicant’s burden to prove her entitlement to protection, albeit to a relatively low standard.  That burden cannot be discharged by merely making a set of limited written assertions which are untested and which contain insufficient details and inconsistencies.  As is stated in the UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status, an asylum seeker has an obligation in assisting the decision maker in ascertaining and evaluating the facts in support of his non-refoulement claims.  These obligations include:

(1)  telling the truth and assisting the decision maker to the full in establishing the facts of his case;

(2)  making an effort to support his statements by any available evidence, giving a satisfactory explanation for any lack of evidence, and if necessary, making an effort to procure additional evidence;

(3)  supplying all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the decision maker to establish the relevant facts.  He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him.

25.The Applicant had been called upon to discharge her duty of telling the truth and answering questions to enable the Board to establish the relevant facts.  Though the Board did not expressly warn her that she will be disbelieved or that her claim was bound to fail if she did not testify, she must have appreciated that risk otherwise the Board would not have convened the hearing and made the request.  In the Court’s view, the Board had observed the high standard of fairness and discharged its duty of making a joint endeavour with the Applicant in establishing her case.  It was the Applicant who chose not to cooperate and not to perform her part in the joint endeavour.  In the Court’s view, the Board had observed the high standard of fairness and discharged its duty of joint endeavour.

26.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; correctly identified the issues and observed a very high standard of fairness.  Limited by the constraint imposed by the Applicant, the Board assessed her claim on all available evidence and made its finding to the extent such evidence allowed.  It was on the basis of the available evidence from the Applicant and the credible COI that it made its findings as summarised in paragraph 19.  It was by applying the law applicable to non-refoulement protection under the USM to those findings that the Board held that the Applicant had failed to prove her entitlement to 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 and irrationality.  The Court could not detect any error of law in the 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.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.

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

Dated the 17^th day of August 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] 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)