Elli Ludfiati v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1606/2019 on BabelCite. This High Court CFI judgment.
1. This is the Applicant’s application by Form 86 filed on 13 June 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 14 March 2018. She did not name the putative respondent, but annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 June 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14
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HCAL 1606/2019 [2024] HKCFI 1192 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1606 of 2019
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge To:
Observations for the Applicant: Introduction 1.This is the Applicant’s application by Form 86 filed on 13 June 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 14 March 2018. She did not name the putative respondent, but annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 6 June 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 March 2018 (the “Notice”). Enquiries with the Board and the Immigration Department revealed that no decision dated 1 March 2018 had been made by the Board or the Director in respect of the Applicant. In the circumstances, it is obvious that the Applicant’s intention is to seek leave to review the Board’s Decision dismissing her appeal against the decision of the Director in his Notice. Accordingly, leave is granted to amend the Form 86 to the above effect, making the Board the putative respondent, the Director the interested party and the Decision the decision in respect of which relief is sought. 2.The Applicant 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 her application may be justly determined on paper without an oral hearing. 3.The Applicant is an Indonesian national. She last entered Hong Kong on 8 January 2014 to work as a foreign domestic helper. Her employment was prematurely terminated. She did not leave Hong Kong within the permitted period and overstayed. She surrendered to the authorities on 14 December 2016. On 2 March 2017, 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 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 claims that she will be harmed upon her return to Indonesia by the family of her ex-husband for having re-converted back to Hinduism and by a moneylender because she will not be able to repay her debt owed to him. 5.The Applicant, now aged 45, was born in East Java Province of Indonesia. She completed 12 years of formal education and has working experience in Malaysia, Taiwan, and Hong Kong. She is divorced and had two children with her ex-husband, whom she married in 2001. Upon her ex-husband’s insistence, she converted from Hinduism to Islam faith. During her marriage, she suffered domestic violence at the hands of her ex-husband because of disputes over religious beliefs and financial issues. He started slapping her about three times a week in 2003 when she became pregnant. The Applicant did not seek hospital treatment due to financial constraints but recovered within a week of the assault. In 2005, she told her ex-husband about her intention to re-convert back to Hinduism. He warned her not to and told her that their children should follow Islam faith. Subsequently they divorced in 2006 when her ex-husband had an affair with another. The Applicant and her children went back to her family home to live with her parents. Her ex-husband’s parents continued visiting her children at the home of the Applicant’s parents. They threatened to harm her if she changed her religion. In 2008, the Applicant went to work in Taiwan. 6.The Applicant returned to Indonesia in 2011. After using up her savings in around September or October 2011, she borrowed 20 million Indonesian Rupiahs (equivalent to HK$18,228) at a monthly interest rate of 20% (ie HK$3,645) from the moneylender for a term of two years. The moneylender was affiliated with the 'Red Axe gang' in Turen of Indonesia. 7.The Applicant came to Hong Kong to work as a foreign domestic helper in around October 2011. By the end of 2013, she was unable to repay the debt in full. The moneylender began threatening her family in Indonesia but never harmed them. The Applicant returned to Indonesia towards the end of 2013 and stayed in an accommodation in East Java arranged by her employer. She did not encounter any problem from the moneylender there. 8.In January 2014, the Applicant returned to Hong Kong to continue her employment. She re-converted back to Hinduism. Her employment was terminated in December 2014. She overstayed and then lodged her non-refoulement claim on 2 March 2017. She was certain that if the parents of her ex-husband learnt about her re-convertion, they would execute their threats and harm her. She does not believe the Indonesian police would offer her protection without a bribe. She claims that internal relocation within Indonesia would not be feasible because she lacked financial means while her parents and her children could not leave their hometown because they had to rely on the income from a family-owned grocery store for their livelihood. She confirmed that hitherto her family in Indonesia had never been harmed by the moneylender or her ex-husband’s family. The finding of the Board 9.The Applicant said that her loan was documented but she had lost the loan document. When asked why she agreed to pay 20% monthly interest, which was an interest rate so high that would virtually wipe out all her salary in Hong Kong, she explained that she had no choice because her family only knew this moneylender. 10.The Board noted from authoritative and credible country of origin information (“COI”) that there was a competitive market in moneylending in Malang close to her home in Turen. Since illegal moneylending was widely and readily available and her parents, being traders themselves, would have had such knowledge, there was no reason why the Applicant would have taken out a loan at the excessive interest rate of 240% per annum from a dangerous gang member as she alleged. The Board considered her story inherently implausible and her evidence incredible. While accepting that the Applicant might have taken out a loan in Indonesia, the Board did not accept that she took out a loan in the terms and from such a moneylender as she alleged or that she was under threats for failing to repay. 11.The Board also did not believe her ex-husband’s parents would harm her for re-converting back to Hinduism. It noted that she divorced her ex-husband more 12 years ago and their children were a few years away from adulthood. That her ex-husband’s parents continued visiting her children showed that their relationship with the Applicant’s family was not as hostile as she described. The Board did not accept that they had any motive to harm the Applicant. 12.The Board further held that she could safely relocate to other parts of Indonesia, such as Jakarta or other large cities to avoid the alleged sources of harm. The Applicant is a mature and able-bodied person with considerable experience as a domestic helper and factory worker. It would not be unduly harsh to expect her to relocate within Indonesia to avoid the risk of harm. 13.As none of the sources of harm given by the Applicant stood up to scrutiny, the Board held there was no ground for finding that she will be at risk of any of the proscribed risks of harm upon her return to Indonesia. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the Unified Screening Mechanism. Hence, it dismissed her appeal against the Director’s Notice. Legal principles applicable to judicial review 14.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 15.The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only repeated the essence of her case and reiterated her fears and risk of harm. She had been invited by the Court via its letter dated 15 November 2023 to advise the Court of his first language and to file submissions. She did not respond. 16.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. 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 of harm from her ex-husband’s parents or the moneylender, if returned to Indonesia. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality. Discussion and conclusion 17.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 Board found the Applicant’s evidence incredible and rejected her case as inherently improbable. She had therefore failed to establish the factual basis in support of her claim for protection. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. 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 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. For the above reasons, the application for leave to apply for judicial review is refused. Dated 30th day of April 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 [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 [14(1)] |
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