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

HCAL 1541/2019

[2024] HKCFI 348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1541 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 Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 5 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (the “Board”) dated 3 May 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 23 January 2019 (the “Notice”). 

2.The Applicant is an Indonesian national.  She last entered Hong Kong on 25 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 was arrested on 5 November 2018. On 8 November 2018, 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].  Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

3.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 her sister Watini because she exclusively inherited her parents’ property and refused to join Moro Islamic Liberation Front (“MILF”) which is a terrorist organisation; and by her husband because she failed to repay the money he borrowed for her to enable her to seek new employment in Hong Kong.

4.The Applicant, now aged 40, was born and raised in Indonesia.  She received education up to the secondary level.  She has worked as a babysitter and a foreign domestic helper.  Her father passed away in around 2000, leaving the family property to her.  The inheritance arrangement made Watini angry and Watini attacked her at their home on three occasions.  In one of the attacks, Watini hit her with a ladle and her ear became swollen.

5.Watini vowed to revenge on the Applicant.  She joined MILF in around 2006 and asked the Applicant to join MILF and Islamic State of Iraq and Syria (“ISIS”), but the Applicant refused.  According to the Applicant, MILF was associated with ISIS.

6.The Applicant went to work in Taiwan as a foreign domestic helper between 2007 and 2010.  Prior to her departure for Taiwan, a male cousin of Watini’s husband came to her mother’s home to look for her.  He left when told that she had gone to work in Taiwan.  That man came again in around 2007 and threatened that the Applicant will be killed if she made Watini angry.  Since returning from Taiwan, the Applicant received two threatening calls in 2011 from an unknown man asking whether she was at her home in Indonesia. 

7.After arriving in Hong Kong in 2014, the Applicant received a call from the same anonymous man.  That man said she already knew who he was and that he was waiting for her to return to Indonesia.  The Applicant learnt from her mother that an unknown man had come to her home to enquire about her whereabouts three times. 

8.The Applicant’s second source of harm is from her husband who had a history of domestic violence against her.  In 2016, her husband took out a bank loan for around HK$40,000 to help her find a new employer after her contract was terminated prematurely. The Applicant was unfortunately cheated out of this money.  Her husband threatened to kill her if she returned to Indonesia without the money. 

9.The Applicant believes she could not relocate to other cities in Indonesia to avoid the risk as she has no relatives there to support her and the terrorist groups could easily locate her.  She also does not believe the Indonesian authorities could protect her from Watini or the terrorists.

The finding of the Board

10.The Applicant testified before the Board.  The Board found inconsistencies between her testimony and the evidence given in her five written representations.  It also noted serious discrepancies among her five representations written between 8 and 26 November 2018.  In her first representation, her sole source of fear is from her husband. Watini and her threats were not featured at all.  In her other four representations, the threat imposed by her husband was not mentioned.  In her second representation written one day after the first one and her third representation, she mentioned Watini’s grievance over the inheritance arrangement and her involvement with MILF.  In her fourth representation, she repeated her complaint about being forced to join MILF with the entire family and being ousted by the family for her refusal to join.  That is inconsistent with her NCF in which she said she maintained contact with her mother. 

11.The Applicant gave inconsistent evidence about the timing when Watini joined MILF and her motivation for joining.  In the first four written representations, she claimed that Watini joined because Watini was upset with the inheritance arrangement.  But in her testimony before the Board, she said that Watini had joined when they were both at school.  That was long before their father’s demise after which the issue of inheritance arose.  The timing indicated that Watini’s joining the MILF had nothing to do with the inheritance arrangement. 

12.In the five written representations, the Applicant claimed that she received the inheritance because she was the last child of the family.  But, it is her testimony before the Board that her brother is two years younger than she is.

13.The Applicant claimed that MILF is a terrorist group associated with ISIS.  But the available country of origin information indicated the contrary and that ten MILF fighters died in clashes with ISIS-linked groups.  According to Wikipedia, MILF seems not to be one of the radical groups pleading allegiance to ISIS.  The Applicant could not quote any incident to support her belief that MILF is a terrorist organisation.  She even said she did not know what it had done.

14.The Applicant claimed that the loan her husband obtained for her was transferred to her through an Indonesia bank to her bank in Hong Kong, but she lost the documents evidencing the transfer.  Despite the Board’s encouragement, she declined to take time to obtain a copy of supporting documents from the bank. 

15.The Board found the Applicant incredible and rejected her evidence in its entirety[5].  It therefore found the Applicant had failed to establish the primary facts to support her claim that the feared risk is likely to materialise[6]. Nonetheless, the Board also evaluated her claim on the basis of the case as she asserted.

16.In respect of Torture Risk, the Board noted that the Applicant had never been seriously harmed by Watini, MILF or her husband in the past and there was nothing to suggest there would be any real risk of harm from them upon her return in future.  It also found the ill-treatment she received or likely to receive in future fall outside the meaning of ‘torture’ under Section 37U of the Immigration Ordinance for want of involvement by state actors.

17.In respect of BOR 3 Risk, the Board repeated the above finding.  It noted that the Applicant had never been harmed by MILF or her husband in the past and the ill-treatment she received from Watini did not attain the minimum level of severity.  Hence, it found that the Applicant had failed to prove she would face a genuine and substantial risk of being subjected to serious harm from them upon her return to Indonesia in future. 

18.As for BOR 2 risk, it is not the Applicant’s case that a death sentence had been passed on her.  The Board found for the same reasons that she had failed to prove any foreseeable, real and personal risk that she will be deprived of her life arbitrarily by Watini, MILF or her husband and that the Indonesian government would not and could not protect her.

19.As for Persecution Risk, the Board found that her dispute with Watini or her husband is a personal dispute and the feared risk is not on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie race, religion, nationality, membership of a particular social group or political opinion.

20.The Board also found on the basis of authoritative and credible country of origin information (“COI”) that despite some deficiencies in the Indonesian police, there are on-going reforms to improve the situation and that adequate state protection would be available to the Applicant upon her return to Indonesia.  It also held that as an able-bodied adult with work experience in Jakarta and abroad as domestic helper, it would not be unduly harsh to expect her to relocate within Indonesia to Jakarta on her return to further mitigate the risk of harm.

The legal principles applicable to judicial review

21.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[7].  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

22.After having been explained the above legal principles, the Applicant said she only wished to stay in Hong Kong and confirmed that she had no complaints about procedural unfairness or irrationality and would leave it to the Court to find out if there is any error of law in the Decision.   However, in her supporting affirmation she advanced the following four grounds of application:

(1)  The Decision was not reasonable and unfair in that the Applicant was not given sufficient time to prepare her evidence;

(2)  The Director failed to give proper weight to the presence of state acquiescence.  She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Director failed to take such (above) arguments into account.

(4)  This was a clean case of unfair attitude shown by the Director.  The corruption and incompetency of the administration in her country is still a very serious problem.  The Director failed to attain the high standard of fairness required by the Wednesbury test.

These grounds are very familiar and have obviously been copied from other applications which may not have any relevance to this one.  Nevertheless, they are considered below.

Ground (1) – Unreasonable and unfair

23.This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning right to life and the extra-judicial killing which he would face if returned to Benin.  These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided she meets the criteria in any of the four applicable grounds under the USM.  The question is whether the Applicant meets those criteria.  The Board was of the opinion that she does not.  That is a finding of fact exclusively within the province of the Board. The Applicant disagrees with the finding and complains that the Decision was unfair and unreasonable.  Thus, this ground of application boils down to two points; namely whether the Decision was unreasonable and unfair in the public law sense, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence. 

24.The essence of the Applicant’s ground is that the Decision is unreasonable and irrational.  But she did not give particulars as to why the Decision is unreasonable and irrational.  The Board set out the legal principles relating to the four applicable grounds under the USM, the burden of proof, the Applicant’s evidence and gave full reasons for its finding.  The Board found the Applicant an incredible witness and rejected her evidence.  The Board gave reasons for its finding.  Basically, the Applicant’s evidence is so internally inconsistent and conflicting that it could not have been a true account of her true experience.  It is also contradicted by credible COI.  It was therefore not satisfied that the Applicant had proved the factual basis to support her claimed fears and risks are genuine.  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.  That is the primary finding of the Board. 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.  It then took a step further and assessed her entitlement on the basis of the case as she asserted.  It found as a matter of law that her alleged fears and risks fall outside the criteria entitling her to non-refoulement protection under any of the four applicable grounds.  This is a mixed finding of law and of fact. Insofar as it is a finding of fact, the Applicant could have no complaint, as the Board assessed her entitlement on the basis of the case as she asserted. Insofar as it is a finding of the law, it is absolutely correct.

25.As for the Applicant’s complaint that the Board did not give her sufficient time and chance to arrange the evidence, it is just an unsupported bald assertion.  If she considered she did not have sufficient time to arrange her evidence, she could have informed the Board or sought an adjournment at the hearing for her to do so.  This complaint is contradictory to her admission before this Court.  This ground has no conviction at all.  Obviously, it was cloned from some other applications for judicial review.

Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies 

26.For the Applicant’s benefit, the Court treated her reference to the Director as including the Board as well.  The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that she was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account.  The only and most serious torture or ill-treatment the Applicant ever suffered was a hit by Watini with a ladle which caused her ear to swell.  There was no evidence that state law enforcement agencies were involved in those incidents.  This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.

Grounds (3) – Weighting on COI 

27.The Applicant complains about the weighting given to her arguments and the COI.  The primary finding of the Board is that the Applicant had failed to prove her fear and risk of harm was genuine.  On this finding, there is no factual basis to support her claims for non-refoulement protection on any of the four applicable grounds.  In other words, the Applicant is not at risk at all.  She has no need for state protection or internal relocation.

28.It was only in its alternative finding on the basis of the case as asserted by the Applicant that the Board considered her concerns about inadequacy of state protection against terrorists, ie MILF and her husband.  After referring to COI from authoritative and credible sources, the Board found, despite ineffectiveness of the Indonesian government and the police, there have been ongoing improvements and adequate systemic state protection is available.  It also found internal relocation a possible option to avoid the risk of harm.  There are finding of fact based on the nature of harm and authoritative and credible COI.  Such finding is within the province of the Board to make which the court in a judicial review will not interfere, save for errors of law, procedural unfairness and irrationality in the Decision.  The Applicant has not advanced any COI to contradict those relied on by the Board.  There is no substance in this ground. 

Ground (4) – Unfair attitude and breach of high standard of fairness

29.Again, for the Applicant’s benefit, the Court treated her reference to the Director as including the Board as well.  The Applicant alleges that this was a clean case of unfair attitude shown by the Director (and the Board) and their breach of the high standard of fairness required by the Wednesbury test. He did not give particulars of unfairness and breach of duty.  Taking a global view of the Applicant’s case, the finding of the Board and the above grounds, there is no substance in this ground as well.

Conclusion

30.For the above reasons, none of the grounds advanced by the Applicant has substance.  In overall terms, the Applicant is in fact attempting to challenge the Board’s finding of fact under the guise of judicial review.  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.  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[8].

31.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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Court could detect no errors of law or procedural unfairness in the Decision.  The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s grounds for judicial review are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated 29^th day of January 2024.

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