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

HCAL 93/2024

[2024] HKCFI 1319

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 93 of 2024

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 be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 8 January 2024 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 24 November 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 30 August 2023 (the “Notice”).

2.The Applicant is an Indonesian national. She last entered Hong Kong on 12 August 2019 to work as a foreign domestic helper. Her employment was prematurely terminated on 25 July 2022, but she did not leave Hong Kong within the prescribed period. She was arrested on 9 October 2022 for overstaying and taking up unlawful employment. She was sentenced to 15 months’ imprisonment. On 23 June 2023, 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]. 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 forced to marry a moneylender (the “moneylender”) upon her return to Indonesia because her husband was unable to repay the debt he owed money to the moneylender.

5.The Applicant, now aged 29, was born in Bima, Indonesia. She received 12 years of education and has worked as a domestic helper in Indonesia and in Hong Kong. She married her husband in 2017 and has a son. She came to Hong Kong to work as a foreign domestic helper on 12 August 2019. She contacted her husband by telephone once a week. In January 2020, her husband told her that he wanted to start a business repairing motorcycles and had borrowed 50 million Indonesian Rupiah (“IDR”) from the moneylender at a monthly interest rate of 20%. He asked her to repay the loan because she was working in Hong Kong and for that reason named her as his guarantor of the loan. The Applicant agreed, but she never paid anything to the moneylender. She knew that the moneylender was about 50 years old and had many wives but she did not know anything else about him.

6.The Applicant lost contact with her husband since August 2020 and their son had to be taken care of by the Applicant’s parents. In March 2021, she received an anonymous call telling her that her husband had failed to repay the loan and disappeared and because of that she had to marry the moneylender on her return to Indonesia. The Applicant was very frightened and changed her phone number. Thereafter, she did not receive any more call from the moneylender.

7.After her employment was terminated in July 2022, she informed her parents that she would be returning to Indonesia. Then her parents told her not to return because since 2021 the moneylender had been visiting her parents’ home every day asking if she had returned. The Applicant claims it would not be safe for her to return to Indonesia because she would be forced to marry the moneylender. She does not know if the Indonesian police could help her because the moneylender was very rich and could bribe the police. She does not believe internal relocation would be viable because the moneylender could hire people to look for her.

The finding of the Board

8.The Applicant testified before the Board. The Board found her evidence unreliable and inherently improbable. Her claim was solely based on hearsay and speculation. Other than her own assertion, she adduced no evidence to support the existence of her husband’s loan. Furthermore, the monthly interest which she allegedly agreed to pay exceeded her income as a domestic helper. That raised doubts as to the credibility of that aspect of her alleged agreement with her husband.

9.The Board found her claim about the guarantee agreement questionable. She was only asked to be the guarantor after her husband had obtained the loan. She had never spoken to the moneylender, never agreed with the moneylender to be a guarantor or signed any guarantee before her husband took out the alleged loan. Her alleged agreement to be his guarantor was a private arrangement between her and her husband, which had nothing to do with the moneylender. Despite her agreement to pay the monthly interest, she actually never paid the moneylender anything. These cast doubt on the credibility of the alleged guarantee agreement.

10.The centrepiece of the Applicant’s claim is that she will be required to marry the moneylender on her return to Indonesia. However, Indonesia is an Islamic country and it is haram, ie sinful and prohibited under Islamic law for a man to take another man’s wife as his wife and for a married woman to marry another man as his wife. Hence, the Board found the alleged means of enforcement of a debt in this manner in an Islamic country is highly questionable.

11.The Board found it dubious that the moneylender did not contact the Applicant until March 2021, seven months after her husband had absconded. If there was a guarantee agreement, the moneylender would have contacted her much earlier. It also found her evidence that her parents never told her about the moneylender’s daily visits since 2021 until she indicated her intention to return to Indonesia in July 2022 inherently incredible.

12.The Board rejected the Applicant’s evidence as incredible and found she had failed to discharge the burden of proving the factual basis of her claim even to the very low standard of proof required. This is the primary basis of the Board’s Decision.

13.The Board also went on to assess her claim on the basis of the case as she asserted. It found even on the basis of her evidence she was not entitled as a matter of law to non-refoulement protection under any of the four applicable grounds under the USM.

14.In respect of Torture Risk ground, the Board found the ill-treatment from the moneylender did not amount to severe pain and suffering as to constitute ‘torture’ within the meaning of section 37U of the Immigration Ordinance. In any event, there was no involvement in the alleged ill-treatment at any stage by any public official or anyone acting in an official capacity, which is another necessary requirement for the ill-treatment to constitute ‘torture’.

15.In respect of BOR 3 Risk ground, while accepting that the demand to marry must have been a bad experience for the Applicant, the Board did not consider the demand attained the minimum level of severity as to entitle her to protection under this ground.

16.In respect of Persecution Risk ground, the Board found that the dispute between the Applicant and the moneylender was a personal dispute and she was not threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Hence, her claim fell outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

17.In respect of BOR 2 Risk ground, it is not the Applicant’s case that she is subject to a death sentence or at risk of genocide in Indonesia. She has not made any representation that she is otherwise entitled to protection under this ground.

18.Furthermore, on the basis of credible country of origin information, the Board found that the Indonesian government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens (including women). As a young adult with seven years of working experience, it would not be unduly harsh to expect to relocate to other parts of Indonesia to avoid the risk of harm from the moneylender. She could make a living in a city of her choice and the Board identified several cities, such as Jakarta, Surabaya and Bali as potential cities for relocation. It was therefore satisfied that adequate state protection would be available to the Applicant on her return to Indonesia and that she could also avoid the risk of harm from the moneylender by internal relocation.

19.For the above reasons, the Board dismissed her appeal against the Director’s Notice.

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 did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she repeated the gist of her claim and reiterated her dangerous situation. She had been invited by the Court via its letter dated 26 January 2024 to advise the Court of her first language and to file submissions. She responded but did not file any submissions. At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about errors of law, procedural unfairness and irrationality in the Decision.

22.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 if returned to Indonesia. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Discussion

23.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 primary basis of the Board’s Decision is that it found the Applicant’s evidence incredible and rejected her case in its entirety. 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.

24.The secondary basis of the Board’s Decision is that even if her case were accepted, she is not entitled to protection as a matter of law and fact. Furthermore, it found on the basis of authoritative and credible country of origin information that adequate state protection and internal relocation are available to prevent or avoid the risk of harm if it turned out to be real. Insofar as these are finding of facts, they 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. Insofar as these are finding of law, 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. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

25.For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.

Dated 13^th day of May 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