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

HCAL 2151/2023

[2024] HKCFI 1360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2151 of 2023

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 1 December 2023 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated17 November 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 August 2023 (the “Notice”).

2.The Applicant did not request 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 first worked in Hong Kong as a foreign domestic helper in 2002.  She last entered Hong Kong on 2 March 2020 for employment.  She received several extensions of stay until 2 March 2023.  She was arrested for theft on 25 April 2023 and sentenced to 7 months’ imprisonment.  On 25 May 2023, 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 rejected 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, if refouled, she will be harmed by her ex-boyfriend for refusing to marry him and by two loan sharks for failing to repay the outstanding loan her boyfriend borrowed from them.  She also claims her life will be at risk in Indonesia because she could not afford medical treatment for her epilepsy.

5.The Applicant, now aged 47, was born and raised in East Java, Indonesia.  She received 12 years of education and has about 18 years of working experience as a food vendor and as a foreign domestic helper in Hong Kong. 

6.Her ex-boyfriend was her high school classmate whom she reconnected in 2017 after his divorce.  Sometime after her return to Hong Kong in March 2020, she agreed to be his girlfriend.  She sent him money from time to time between 2020 and 2023 to support him during the Covid-19 pandemic and to buy a mobile phone and a motorbike.  In early 2023 her ex-boyfriend suggested buying a house to live with the Applicant.  The Applicant did not believe he had the means to buy a house and told him not to.  She felt suspicious and asked her friends to make inquiries about him.  Her friends indicated that he was cheating on her.  At the time, her ex-boyfriend also appeared to be avoiding contact with her.     

7.After the Chinese New Year in 2003 (ie in February 2023 or November 2002 on another account), her ex-boyfriend proposed to marry her and requested her to return to Indonesia.  The Applicant replied that she wanted to end the relationship.  Then her ex-boyfriend revealed that he had borrowed 70 million Indonesian rupiahs (“INR”) from a moneylender to purchase a plot of land.  They argued and their relationship soured.  Then the Applicant blocked contact with him on Whatsapp and Facebook.

8.In March 2023, her ex-boyfriend called her with a new number.  He threatened to disseminate intimate pictures of the Applicant and demanded that she repay the loan for him, but the Applicant refused.  He also threatened to kill her and her new boyfriend from Hong Kong if she returned to Indonesia with him. 

9.Later the same month, the Applicant received a phone call from an unknown man demanding her to repay IND 70 million.  That man made several further contacts with her claiming that her ex-boyfriend had borrowed the money at her request and hence she was responsible for repaying.  The man threatened that she had to repay by selling her property or with her life.  The Applicant later learnt from her former classmates that her boyfriend had taken out a loan from a couple who were loan sharks in Indonesia.

10.She also claims that she is suffering from epilepsy and has to take medicine regularly.  She said she could not afford the medicine and is not entitled to free medical care in Indonesia.  She said she could not obtain help from her family as they have disowned her for having been imprisoned in Hong Kong.

11.She claims that the Indonesian police would not protect her unless she paid bribes and that she cannot relocate to other cities in Indonesia as she had no connection or support from friends or her family outside her home area.

The finding of the Board

12.The only evidence as to the Applicant’s claim of feared harm is her oral and written evidence.  She testified before the Board. The Board found that her evidence somewhat cursory, lacking in credible detail, largely based on assumptions and second hand evidence from her friends.  It considered her evidence generally unpersuasive.  When questioned about aspects of her claim, she tended to add new claims which were often inconsistent with what she had said before.  She was unable to explain significant inconsistencies in the details of the claim she put forward at different times.  She was inconsistent as to the time when she broke up with her ex-boyfriend.  The Board could not understand why her ex-boyfriend was angry enough to threaten to kill her for not providing financial support but in the same conversation proposed to marry her.  The Board did not accept that there was a real risk that her ex-boyfriend would make good the claimed threat to kill her whether for refusing to marry him or to pay off his loan.

13.The Board found the Applicant’s evidence about the loan vague and inconsistent.  She first suggested her ex-boyfriend had borrowed from the loan sharks to buy a motorbike, but indicated that there was no motorbike.  Then she said he wanted to buy a house, but later she said he had bought land with the loan.  When the Board suggested that the loan sharks could seize the land to satisfy the loan, she said he had not bought any land.  The vague and inconsistent assertions left the Board in considerable doubt as to whether there was a loan at all, ie whether there was any threat from the loan sharks about the loan.  Even if there was, the Board did not accept the loan sharks would kill the Applicant merely because her ex-boyfriend had told them that the Applicant would repay.

14.As for the Applicant’s need for medical care, on the basis of authoritative and credible country of origin Information (“COI”), the Board rejected her claim that she would not be entitled to assistance under the Indonesian universal health insurance scheme or BPJS Kesehatan upon her return to Indonesia and was satisfied that the Indonesian government provides subsidies for the unemployed and the poor.  She may also receive assistance from non-government organisations, such as the Red Cross in Indonesia and the Women Headed Household Empowerment Program.  The Board doubted her evidence about the lack of support from her family and found that it was likely that her family would continue to support her upon her return.

15.The Board further noted that her medical condition had not prevented her from traveling to Hong Kong and working as a foreign domestic helper.  It also held that she would have no problem in relocating to other big cities such as Surabaya, Jakarta, Makassar or Bali to seek employment there and access better healthcare.

16.In respect of her claim under Persecution Risk ground, for the above reasons the Board was not satisfied that there is a real risk that the Applicant would be killed or harmed by either her boyfriend or the loan sharks or for lack of medication to treat her medical condition.  It found her fear of persecution was not well-founded.

17.In respect of her claim under Torture Risk ground, the Board found for the same reasons that the Applicant would not be at risk of harm from her ex-boyfriend or the loan sharks.  In addition, it found the Applicant’s inability to afford medication does not meet the definition of torture.  In any event, it was satisfied on the basis of the COI that the Applicant would be able to obtain medication she need under the Indonesian universal health insurance scheme and assistance under other schemes.

18.In respect of her claim under BOR 3 Risk ground, the Board found for the same reasons that the Applicant would not be at risk of harm from her ex-boyfriend or the loan sharks.  The Board was also satisfied that the Applicant would be able to obtain the medication she need under the Indonesian universal health insurance scheme and out of pocket expenses for whatever reason from her family, employment or welfare support. 

19.The Applicant has not claimed and there is nothing arising from the evidence to suggest that she would be at risk of being arbitrarily deprived of her life by her ex-boyfriend, the loan sharks or for want of medication in Indonesia.

20.The Board therefore held that the Applicant would not be at risk of harm from any of the proscribed risks of harm under the USM upon her return to Indonesia and dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

21.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

22.The Applicant did not advance any grounds for judicial review in the Form 86.  In her supporting affidavit, she reiterated her risk of harm from her ex-boyfriend for refusing to marry him and her inability to afford medication if returned to Indonesia.  The essence of her ground is that she disagreed with the finding of the Board that she will not be at risk of harm from her ex-boyfriend or the loan sharks or her life will be in danger due to her inability to afford the medication she needs in Indonesia.  In effect, she is seeking to challenge the Board’s finding of fact which is not permissible in a judicial review.  In the absence of proper or 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. 

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 Board found the Applicant’s evidence incredible and rejected it.  Hence, the Applicant had 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 under the USM.  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.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

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

Dated 21^st 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