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

HCAL 1965/2019

[2024] HKCFI 3136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1965 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 May 2020 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. She appeared before the Court on 28 August 2024 and asked for an adjournment for her to apply for legal aid. When asked why she had taken 5 years to apply for legal aid, she said that she had applied before. But she changed her address without updating the Director of Legal Aid (“DLA”). She said that she would make another application. The matter was adjourned to 16 October 2024.

3.On 16 October 2024, the applicant appeared before the Court and said that she had not obtained DLA’s confirmation. She also applied to have a man to be the Mckenzie Friend. This is within the Court’s discretion[1]. Having considered that it was an ex parte application, which the Court would only ask for some information of her personal knowledge, this Court refused her application. The Court also refused to delay the matter further and proceeded with the hearing.

4.However, I advised the applicant that her McKenzie friend may prepare written submissions for her. The written submissions with a bundle of transcript of the Board’s hearing and other documents, enclosed with a letter dated 30 October 2024 were received by this Court. I shall deal with them below.

The applicant

5.The applicant, aged 41, is an Indonesian. She last arrived in Hong Kong as a visitor on 4 April 2013 and she overstayed since 12 April 2013. The applicant was arrested by the police on 11 May 2013 for overstaying and she was sentenced to imprisonment of 1 week suspended for 12 months on 16 May 2013. The applicant made a non-refoulement claim on 3 March 2014. The claim was made on the basis that, if refouled, she would be harmed or even killed by the creditor of her mother (“the creditor”).

6.According to the applicant, her father had an accident in 2007 and her mother took out a loan from the creditor to settle his medical expenses. Due to the non-repayment of the loan, the creditor had visited the applicant’s home on a number of occasions demanding repayment, during which he also took away some valuables and slapped her mother once. In order to resolve the debt issue, the applicant came to Hong Kong to work as a foreign domestic helper in July 2008. When she returned to Indonesia in 2010 between her contracts, the creditor came to her house again, who slapped her on her face and punched her right shoulder. He also issued verbal threats to her. In January 2011, the applicant returned to Hong Kong and had not gone back to Indonesia since then.

7.The applicant maintained contact with her mother and was informed that the creditor was still coming to her home demanding repayment. The applicant was of the view that she could not seek protection from the police because they were corrupted and she also feared retaliation from the creditor. The applicant considered internal relocation not viable as well because the creditor could locate her through his underlings.

8.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 10 October 2017 (“the Director’s Decision”).

The Director’s Decision

9.The Director considered the applicant’s claim in relation to the following risks:

(a)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from the creditor indicated a small future risk of harm upon her return to Indonesia [14]-[15]; (ii) there was no evidence showing that the creditor was as influential as she claimed [16]; (iii) state protection would be available [17]-[20] and (iv) internal relocation would be viable [21]-[22].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 6 December 2018, the Board conducted an oral hearing. The applicant was legally represented before the Board. The Director was represented by Government Counsel. The case was therefore fully argued before the Board.

12.The Board found that the applicant was vague about the loan and the creditor [69]-[74]. Upon consideration of the country of origin information, although it showed that violent debt recovery methods were used by some creditors in Indonesia, the Board noted that the applicant was not the debtor in the present case and that no serious violence had ever been used by the creditor [85]-[89].

13.Regarding the claim for being a victim of human trafficking, the Board observed that the actions of the creditor did not accord in any respect with the behaviour of brokers or recruiters involved in human trafficking. In fact, the applicant was the one who suggested working overseas and made all the necessary arrangement [91]-[95].

14.The Board accepted that the applicant did receive threats from the creditor and was even assaulted once due to the unpaid loan of her mother [101]. However, the Board considered that the applicant faced no real risk of harm given the passage of time and the failure of the creditor to take any action against the actual debtor, i.e. the applicant’s mother, who had means to pay off the debt throughout all these years [108]-[111]. In any event, internal relocation would also be available to the applicant [117]- [127].

15.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [128]-[131]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

Application for leave to apply for judicial review of the Board’s Decision

16.The applicant has filed Form 86 dated 11 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.The applicant has raised the grounds below in support of her application.

(1)  The adjudicator’s decision appears to be based on a mishearing of her testimony.

(2)  The Board had given undue weight to irrelevant or peripheral details in the assessment of her credibility.

(3)  The Board failed to conduct an evidence-based assessment of her evidence.

(4)  The Board failed to give sufficient or any weight at all to the United Nations IOM Case Record.

(5)  The adjudicator misdirected himself by applying an unreasonably high standard of proof.

(6)  The Board failed to consider the actual situation in Indonesia in relation to the future risk.

(7)  The Board had not taken into consideration the country of origin information (“COI”).

(8)  The Board had not considered the Guidelines provided by UNHCR to the granting of Refugee Status to victims of Human Trafficking.

(9)  The applicant was without legal representation in this application.

DISCUSSION

18.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. At the hearing, I asked the applicant if she considered that the Board was wrong in its decisions. She said no. She further said that she did not know whether the Board was wrong.

20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

21.As to the applicant’s grounds under paragraph 16, most of them are her bare assertions without any evidence in support. I shall consider the issues of victim of human trafficking, credibility, the IOM report, state protection, internal relocation, and lack of legal representation by reference to the Board’s Decision.

Victim of human trafficking

The Board found had made the findings below:

“15. At the outset of that hearing Mr Ross accepted that, as a result of the judgment of the Court of Appeal in the case ZN v Secretary for Justice & Others CACV14/2017 [2018] HKCA 473, the Board had no jurisdiction to consider the question of trafficking for forced labour …

17. … the appellant failed to attend an interview with the specialist unit within the respondent department dealing with victim of trafficking …

19. …The appellant had been given almost twelve months from the first hearing of this matter to prepare the case and it was quite true, in my judgment, that the question of whether she had previously been a victim of trafficking was not the central issue; that being whether she faced a future risk of serious harm upon return to Indonesia. …

62. As to whether the appellant had been a victim of trafficking, the submission was the facts she had put forward did not support that conclusion. There was insufficient evidence of any coercion from the loan shark in relation to overseas domestic work and it was again noted that it was not the loan shark who suggested such work, but the appellant and her mother themselves. …”

Credibility

“65. In my judgment, there were very many serious difficulties with the evidence given by this appellant. Her account was vague, was intentionally incoherent in relation to important matters, was not consistent with aspects of reliable background country information, was exaggerated and embellished and the appellant had taken no step to provide reasonably supportive information, despite the passage of more than a decade since the key events she described.

66. … even if accepted in its core elements, it is my judgment that there is no reasonable likelihood she had been a victim of trafficking at the hands of the loan shark, or that the loan shark has or had ever had any links to trafficking networks.”

The IOM report

“83. … I continue to take the view this report can be given very little weight in the context of the task I must undertake and I hereafter disregard it.

State protection

“116. … I will therefore presume that appellant could not receive sufficient protection in her local area in the unlikely event she faced the risk of violence at the hands of the loan shark.

Internal relocation

“127. … I conclude that even if it would be difficult and undesirable for the appellant to relocate, it would not be unduly harsh judged by the standards on the ground in Indonesia. The appellant therefore does have a reasonable relocation alternative.”

Lack of legal representation for this application

The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. … ”

22.A Mr Julian M. Stargardt, who claimed to be the McKenzie friend has submitted a bundle of documents. In his letter, he said that he is not a lawyer himself and he does not understand the legal procedures for judicial review. In his submissions, he has raised similar grounds as set out in paragraph 17, supra. He highlighted the issues of misunderstand of the applicant’s evidence by the Board; time constraints because of the availability of the interpreter and the Board did not adjourn the matter to another date for further evidence; the adjudicator restricted the applicant’s evidence to his questions only; the adjudicator did not deal with the issue of human trafficking. The comment also covers the issue of typo of gender of the applicant in the Board’s Decision. In general, these comments support those grounds under paragraph 17.

23.I have to bear in mind that at the hearing before the Board, the applicant and the Director were legally represented. The legal representatives were there to assist the adjudicator to conduct the hearing in a just and fair manner. Mr Stargardt may have his own opinion about what a just and fair hearing should be and he may turn to technical omissions or minor slips as well. However, these may not be valid to challenge the Board’s Decision as Judge Coleman held in Wong Chau Ming v Secretary for Civil Service [2023] HKCFI 2468, 10 October 2023:

“82. … What must be remembered in cases of this kind, which look to administrative not judicial processes, is that unfairness, procedural or substantive, must be found to constitute an abuse of power. The unfairness must be conspicuous in some way. Technical omissions, minor slips, inconsequential delays or errors of form that have no consequence, unless they in totality can be seen to have destroyed the integrity of the entire process, do not go to prove that administrative process is rendered unlawful.”

24.These are matters for the legal representatives at the hearing to render assistance to the Board. The legal representative acting for the applicant has not raised any ground to challenge the Board’s Decision. I am of the view that Mr Stargardt’s submissions have not advanced the applicant’s case.

25.Therefore, the applicant has raised no valid ground to challenge the Board’s Decision. There is simply no reason for this Court to interfere with the Board’s finding of the facts or its views.

26.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

27.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant appeared in person.