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

HCAL 458/2022

[2022] HKCFI 2921

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 458 of 2022

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 the Applicant being absent 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 12 May 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 January 2022 (the “Notice”).  Though the Director is named as one of the “plaintiffs” in her affirmation dated 10 June 2022, no relief is sought in respect of the Notice or any decision of the Director.

2.The Applicant is an Indonesian national, now aged 37.   She last entered Hong Kong on 3 December 2019 to work as a foreign domestic helper.  Her contract was prematurely terminated but she did not leave Hong Kong within the prescribed period.  She overstayed and surrendered to the authorities on 14 January 2021.  On 8 February 2021, 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 26 January 2022, the Director rejected her claims under all four applicable grounds.  She appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board’s Decision.  She now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

4.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 by her husband upon her return to Indonesia because she failed to remit him money to help him repay his debt.

5.The Applicant was born in Jawa Tengah, Indonesia. She is married with two daughters.  She has received nine years of formal education and has years of working experience as a foreign domestic helper in Malaysia, Singapore and in Taiwan before coming to Hong Kong.

6.Her husband did not have proper employment.  He borrowed around IDR 150 million from a loan shark.  While she was working in Hong Kong, she used to remit about IDR 3 million to him every month to repay his debts.  After her employment contract was terminated in around January 2021, she stopped remitting money to him and he stopped contacting her.  She heard that her husband had left her home and moved back to his parent’s home in the same village.

7.In around January 2021, the Applicant’s mother told her that her husband had come to her mother’s home alone and told her mother that he would kill the Applicant upon her return.  Later in the same month, he came back with an unknown man and repeated the same threat.  Then the Applicant blocked his calls.

8.Since then, her husband had come to her home about five times per month repeating his threat to kill the Applicant upon her return and if she did not give him money to repay his debt.  He sometimes threatened her mother that he would kill her as well if she reported to the police.  On one occasion, he also tried to take away their children by force but her mother managed to stop him.  Her husband has never harmed her family members.   The Applicant believed her husband wanted to kill her because she refused to help him pay his debt.  She did not believe the Indonesian police would do anything to help her because her dispute with her husband was a personal matter.  She also believed she had to bribe the police before they would take action.  She is also concerned that her husband would kill her and her mother if they sought help from the Indonesian police.  She did not believe internal relocation would be viable, as she had neither the money nor connection to live elsewhere.

The finding of the Board

9.The Board accepted the Applicant’s evidence about her personal and family background but found much of her other evidence incredible. Her evidence given before the Board is inconsistent with that in her NCF.  The Board rejected her evidence about the loan and threats from her husband.

10.The Applicant’s case before the Director was that she knew about the loan and helped her husband repay it when she was working in Hong Kong between 2019 and 2020.  This contradicts her evidence before the Board that she did not know about the loan and she first learnt of it in 2021 through her mother after she had blocked her husband’s telephone calls.  When this inconsistency was pointed out to her, she claimed that she did not know the remittances to her husband were used to repay his loan.  The Board found this explanation unacceptable.  She was unable to provide even the most basic information about the loan except for the initial quantum.  The Board rejected her evidence about the loan and her allegation that her husband became so angry with the Applicant for stopping remitting money to him that he threatened to kill her should she return to Indonesia.

11.In the Notice of Appeal to the Board, the Applicant claimed that she travelled to Malaysia, Singapore and Taiwan to escape from her husband’s abuse.  That contradicts her testimoney before the Board that she travelled to those countries well before she was married.  She attributed the inconsistency to mis-translation by her friends.  The Board did not accept her explanation.

12.The Applicant alleged in the NCF that her husband visited her family home with the intention to forcibly take away their children.  However, her testimony before the Board was that her husband never visited their children after their separation.  When this inconsistency was pointed out to her, she explained that he did not visit the children when they remained in contact but that he secretly visited her mother with the intention to seize their children.  The Board found this explanation unacceptable.

13.At the hearing, the Applicant testified that her husband had thrown plates and some wooden objects at her.  When she was asked why she did not mention that in her NCF, she explained that was because she had never been asked at that level of detail.  The Board did not accept this explanation, as she was legally represented when she prepared the NCF.  But even on her evidence, her husband did no more than throwing objects at her and he was not violent when he was trying to seize their children.  The Board did not accept her husband had a propensity to act violently or would be a risk of harm to her upon her return.  The Board also held that there was nothing to suggest that her husband acted in any official capacity or with the consent or acquiescence of a public official.  Further, her alleged dispute with her husband had nothing to do with any of the reasons under the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

14.Applying the law applicable to non-refoulement protection under the USM to the facts in this case, the Board found that the Applicant had failed to prove her entitlement to protection under any of the grounds under the USM.

Legal principles applicable to judicial review

15.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

16.The Applicant did not advance any grounds for judicial review in her Form 86.  In her supporting affirmation, she said she was not satisfied with the Decision because it is “away from facts and reality” and “there is no transparency”.  She had been invited by the Court via its letter dated 19 July 2022 to advise the Court of her first language and to file submissions.  She responded but did not file any submissions.

17.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 is tainted by errors of law, procedural unfairness or irrationality. In the absence of specific grounds of application, the Court in an application for judicial review 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.  She gave no particulars as to how the Decision was not supported by facts and reality and in what way there was no transparency.  The Court would bear these complaints in mind when scrutinising for error of law, procedural unfairness and irrationality in the Decision.

Discussion and conclusion

18.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.  The centrepiece of the Applicant’s case is that her husband had borrowed money from a loan shark and threatened to kill her on her return to Indonesia because she failed to remit him money to repay his debt.  The Board found the Applicants incredible and rejected her evidence on the centrepiece of her claim.  It therefore found she would not face any genuine and substantial risk of being subjected to harm or ill-treatment if she is refouled back to Indonesia.  It was on that basis that the Board found that the Applicant had failed to prove her entitlement to 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 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 does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  On the basis of this finding of fact, there is no basis to complain that the Decision of the Board is “away from facts and reality”.  As for her complaint about lack of transparency, it is not known what is the basis of her complaint.  In any event, transparency or the lack of it could have no impact on the Decision.

19.The proposed judicial review has no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 28^th day of September 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)