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

HCAL 302/2019

[2023] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 302 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.This is the Applicants’ application by Form 86 for leave to apply for judicial review of a decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 January 2019 (the “Decision”) dismissing their appeal against the Notice of Decision of the Director of Immigration (the “Director”) dated 10 April 2018 (the “Notice”).

2.As the 2^nd Applicant is a minor, the 1^st Applicant who represents the 2^nd Applicant had been advised by letter of this Court dated 26 May 2022 to seek legal representation by the Legal Aid Department or private solicitors. More than seven months have lapsed since the date of the Court’s letter, the 1^st Applicant has not taken any steps to arrange legal representation for the 2^nd Applicant. Having considered the merits of the application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with determining their leave application. The Applicants had not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered pursuant to Order 53 Rule 3(3) of the Rules of High Court (Cap 4A) that the leave application may be justly determined on paper without an oral hearing.

3.The 1^st Applicant is an Indonesian national, now aged 37. She first entered Hong Kong in November 2011 to work as a foreign domestic helper. She over-stayed after her employment contract was prematurely terminated on 3 May 2013. She was arrested by the authorities on 14 May 2014. On 27 May 2014, she raised a non-refoulement claim. She gave birth to the 2^nd Applicant on 25 September 2017 and lodged a claim on her behalf on 1 November 2017.

4.In due course, the Applicants’ claims were assessed under all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claims were dismissed by the Director’s Notice. Their appeal against the Notice was dismissed by the Decision of the Board. They now seek leave to apply for judicial review of that Decision.

The Applicants’ case

5.The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim forms prepared by 1^st Applicant with legal assistance by the Duty Lawyer Service, the record of screening interview in the presence of their lawyer and the 1^st Applicant’s two written representations. In gist, the Applicants’ claim is that they will be ill-treated or killed by the 1^st Applicant’s rejected suitor, a man named Rizwan, and a loan shark to whom the 1^st Applicant claimed to be indebted, if they are refouled to Indonesia.

6.The 1^st Applicant was born in Indonesia and used to live in Desa Bulak in West Java. She received 9 years of formal education and had working experience in Singapore and Hong Kong as a foreign domestic helper. Her father is a farmer.

7.She claimed that one day in 2008, a wealthy and influential businessman in Desa Bulak called Rizwan suddenly came to her home seeking her father’s agreement to marry her. Rizwan was much older than the 1^st Applicant and well-connected with the community (such as the police) and the triad. The 1^st Applicant refused, but Rizwan continued to pester her.

8.About one month after this event, the 1^st Applicant was kidnapped and taken to Rizwan’s place. Again, she refused Rizwan’s marriage proposal. Then, Rizwan attempted to rape her, but she managed to escape by jumping out of a second floor window, injuring her foot and knee in the course of her escape.

9.After learning what had happened, the 1^st Applicant’s father advised her to marry someone else in the hope that Rizwan would cease disturbing her. In late 2008, she married Isnanto and they lived with her parents.

10.Despite the marriage, Rizwan continued to disturb the 1^st Applicant and Isnanto. He threatened to kill Isnanto unless Isnanto handed the 1^st Applicant over to him. He also warned the 1^st Applicant’s parents that he would kill her unless she married him. Then, the 1^st Applicant went to hide in the home of her father’s friend in Bandung.

11.About a month later, Isnanto disappeared. The 1^st Applicant’s neighbours told the 1^st Applicant’s father that they saw Rizwan and his bodyguards bring Isnanto out of their house, that he had been killed by Rizwan or had been framed in a case by Rizwan and jailed.

12.The 1^st Applicant also claimed that she borrowed a loan of 3 million Rupiahs from a loan shark in Bandung to defray medical expenses for treating her foot and knee injuries. She could not repay the high interest rate and was threatened with death by the loan shark, though the loan shark never caused her any actual bodily harm.

13.While in hiding, the 1^st Applicant gave birth to her child with Isnanto in July 2009. She heard from her neighbours through her father that Rizwan was still looking for her. On her parents’ advice, the went to work as a foreign domestic helper in Singapore in early 2010 to avoid Rizwan. She returned to Indonesia in 2011. She was unable to find Isnanto. She went to the police station to report Isnanto’s disappearance, but was not given any assistance. Then she came to work in Hong Kong in November 2011. She subsequently lost contact with her family. In 2014, she was told by a neighbour called Wati who had returned to Indonesia that Rizwan and the loan shark were still looking for her.

14.The Applicant is currently living with another man and had given birth to a child, ie the 2^nd Applicant herein, in 2017. She believes the Indonesian authorities would not be able to protect her because Rizwan is powerful and has connections with the authorities. She believes it is impossible for her to relocate elsewhere in Indonesia because Rizwan could find her out.

The finding of the Board

15.In essence, the Board considered the 1^st Applicant’s account largely consistent and coherent. It accepted almost the entirety of her case, save and except her assertion that Isnanto was killed due to lack of corroborating evidence. It accepted that Rizwan aggressively pursued the 1^st Applicant, arranged for her kidnap and attempted to rape her. It accepted that despite her marriage, Rizwan continued to pursue her and was instrumental to the disappearance of Isnanto. It accepted that even today Rizwan may still hold a lascivious interest in the 1^st Applicant or be motivated to harm her for revenge. It was satisfied that there is at least some risk of the 1^st Applicant being subjected to serious or significant harm if she were to return to Des Bulak now, with consequential serious detriment to the 2^nd Applicant.

16.While the Board accepted that the 1^st Applicant was involved in a loan from the loan shark and was threatened, she was not the sole borrower and nothing actually happened to her or her family. The Board was not satisfied that the loan shark presented any real or substantial threat of serous or significant harm to the Applicants.

17.On the basis of authoritative and credible country of origin information, the Board was satisfied that notwithstanding the risk of harm from Rizwan, adequate state protection is now available due to improvement in a range of services designed to protect and support victims of domestic violence. It did not consider it unreasonable or unduly harsh for the Applicants to relocate to other places in Indonesia such as Bandung, Surabaya or Jakarta to avoid the risks of harm.

18.Applying the legal principles applicable to non-refoulement protection, the Board found the Applicants were not entitled to non-refoulement protection under any of the applicable grounds under the USM and dismissed their appeal against the Director’s Notice.

The legal principles applicable to judicial review

19.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 of application

20.The Applicants have not advanced any ground for judicial review in their Form 86. In her supporting affirmation, the 1^st Applicant annexed a copy of the Decision and a two-page submission expressing her disagreement with the Board’s finding of fact. In essence, she argued in her submission that the Board should be cautious before rejecting a claimant’s account as inherently incredible because there is a considerable risk that the decision maker will be over influenced by its own views on what is or not plausible and those views will have inevitably been influenced by its own background in his country and by the customs and ways of its own society.

Discussion and conclusion

21.In effect, by their submissions, the Applicants are seeking to dispute the finding of fact by the Board, which for reasons as explained above is not permissible. That aside, the Court has no disagreement with the Applicants’ suggested approach in finding of fact in asylum cases. It is well settled principle that while the claimant bears the burden of proving his case, the standard he is required to discharge is a low standard. In the absence of evidence to the contrary, the decision maker should accept the claimant’s case as he or she asserted as plausible and assess his or her case on that basis. This is precisely the approach adopted by the Board as stated in Paragraph 85 of its Decision, quoting Karanakaran[6]. Indeed, the Board accepted almost the entirety of the Applicants’ case as they asserted. It did not accept that Isnanto had been killed by Rizwan, but that has no bearing to the Board’s Decision as it accepted that Rizwan was instrumental to Isnanto’s disappearance. It found in favour of the Applicants that there is at least some risk of the 1^st Applicant being subjected to serious or significant harm if she were to return to Des Bulak now, with a consequential serious detriment to the 2^nd Applicant. The Applicant could not have any complaint about this finding of fact. The Board also accepted the 1^st Applicant’s evidence about the threat from the loan shark, but on the totality of the evidence assessed that the loan shark did not present any real or substantial threat of serous or significant harm to the Applicants. More importantly, on the basis of the COI, the Board found that the Applicants could access state protection and internal relocation to ameliorate or avoid the risk of harm. All these are findings of fact solely within the province of the Board, which the Court in an application for judicial review may not interfere, save for error of law, procedural unfairness or irrationality in the Decision.

22.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is 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 Court could not identify any errors of law in the Decision or procedural unfairness. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge his burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the Applicants’ application for leave to apply for judicial review is refused.

Dated the 17^th day of May 2023.

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