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

HCAL 2330/2019

[2025] HKCFI 627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2330 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 be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 13 August 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 5 July 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 March 2018 (the “Notice”) refusing her non-refoulement application.

Background

2.The Applicant is an Indonesian national.  She last entered Hong Kong on 26 September 2011 to work as a foreign domestic helper.  She overstayed since 18 June 2013.  She surrendered to the Immigration Department on 3 March 2016 and lodged a non-refoulement claim on 20 June 2016.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her application was rejected by the Director’s Notice.  Her appeal was dismissed by the Board’s Decision.  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 (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, the Applicant claims that if returned to Indonesia, she will be harmed or killed by the debt collector of a bank (“Selamet”) because she was unable to repay a lone.

4.The Applicant is now 42 years of age.  She had ten years’ formal education and eleven years’ working experience as a domestic helper in Malaysia, Singapore, Taiwan, and Hong Kong.  She is single.  Her parents and four siblings are living in Indonesia.

5.The Applicant claimed that in 2011 she decided to buy a piece of land.  She was introduced to an intermediary (“Nova”).  There was no written agreement between her and Nova.  She took out a loan of 100 million Indonesian Rupiahs from the BMT Syariah Bank (the “bank”) with her sister as guarantor.  She could not recall the exact terms of the loan agreement, such as the maturity date and the amount of monthly interest, but no collateral was required.  After obtaining the loan, she gave the money borrowed to Nova, who was supposed to represent her in the land transaction.  On the next day, she tried several times to call Nova for updates, but Nova’s telephone number did not work and Nova was nowhere to be found.  Though she realised that she might have been a victim of fraud, she did not report the case to the police.

6.The bank’s representatives, Selamet and his associates, went to the Applicant’s home to collect the interest twice a month.  The Applicant managed to pay the interest for the first few months with her savings.  When she was unable to pay, Selamet and his associates screamed and scolded at her or bang the table fiercely to intimidate her.  They often threatened to hire people to assault her and send her to jail if she did not pay.  Whenever she begged for time to pay, Selamet became angry, but he never physically assaulted her or members of her family.  She could not recall when she first defaulted payment.

7.After several threatening visits by Selamet and his associates, the Applicant became worried that the bank would send her to jail. Hence, she applied and took up employment in Hong Kong to earn money to pay off the loan.  After settling the employment fees with her salary for the first seven months, she remitted her entire salary to her sister for paying interest to the bank, until her employment ended in June 2013.  She cut off contact with her family as she was scared to find out what happened to her sister. Eventually, in around mid-2017, she was able to gather her courage to contact her mother.  Her mother told her that her sister had been sent to prison because of the unresolved debt owed to the bank in 2013, but was released and married.  But the bank did not regard the loan as settled.

8.The Applicant claimed that state protection was not available because she was in the wrong.  She does not believe internal relocation viable, as the bank could locate her throughout the country with the assistance of the local authorities.

The finding of the Board

9.First and foremost, the Board noted that the Applicant arrived Hong Kong on 26 September 2011, but did not lodge her claim until 20 June 2016, almost five years later.  The Applicant’s explanation for the delay was that she was unaware of the availability of the protection.  However, the Board considered that anyone in her circumstances would have sourced information about protection in Hong Kong with less delay.  It drew adverse inference on her credibility and reliability of her evidence pursuant to section 37ZD of the Immigration Ordinance.

10.The Applicant testified before the Board.  The Board found significant inconsistencies in her evidence.  Hereunder are examples of some major significant inconsistencies.

11.The Applicant gave different time frames in the NCF and in her testimony in relation to the time when the loan was taken.

12.She said in the NCF that the bank did not require any collateral for the loan; but she said in her testimony that the title deeds of her mother’s land was used as collateral.    

13.She gave three different versions of events relating to her sister’s imprisonment.  In her NCF, she said not long after her employment was terminated in June 2013 her mother told her that her sister had been called to the bank and never returned.  She had no courage to call her family until mid-2017, when her mother told her that her sister was jailed in around 2013 for the unresolved debt owing to the bank, but her sister was now released and married.  Then, she said her family had come to an agreement with Salemet to have her sister released from prison in return for her family pledging a collateral and her undertaking to make repayments gradually.  Next, she changed her evidence and said that she called her family when her sister was still in prison.  After that she did not call for a few months as she lacked the courage to phone her family.  It was her mother who called and told her that her sister had been released from jail.  Her last version is a glaring inconsistent account from that given in her NCF.

14.The Board considered the multiple significant inconsistencies reflected poorly on the Applicant’s credibility and the reliability of her evidence and claims.  It found the Applicant was not a witness of truth in relation to critical elements of her claims.

15.The Board considered the Applicant’s claim that the loan had not been repaid for so many years and yet Salemet was still pressing for repayment instead of seizing the family home as collateral to settle the loan implausible.  It did not accept her claims that she and her sister had taken out a loan from the bank, that her sister was jailed for the unsettled loan, and that Salemet and other people from the bank had harassed and threatened her or her family when pressing for repayment.  It did not accept there was anyone in Indonesia who had or has any adverse interest in the Applicant. 

16.Hence, it found that there could not possibly be any substantial grounds for finding that the Applicant faced any real risk of ill-treatment, if refouled to Indonesia.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis in support of her claims for protection under any of the applicable grounds.  It therefore dismissed her appeal against the Director’s Notice.

Legal principles applicable to judicial review

17.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

18.The Applicant did not advance any grounds for judicial review in her Form 86 or her supporting affirmation.  However, she lodged two written submissions in June 2021 and February 2024.  In her 2021 submission, she advanced the following grounds:

(i)      The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement;

(ii)     The Board acted in a procedurally unfair manner in dealing with her appeal;

(iii)    The Decision is irrational;

(iv)    The Board failed to meet the greater care and duty owed to an unrepresented litigant;

(v)     The Applicant was confused at the hearing because the hearing bundle was delivered late;

(vi)    The Applicant answered all the questions honestly and it was unfair that the Board found her credibility questionable;

(vii)   The Board relied significantly on source of news which is not officially recognised or is simply hearsay or outdated leading to the Board making speculations that it is safe for her to return to Indonesia.

In her 2024 submission, she repeated most of the above grounds and added the following grounds:

(viii)  The Applicant does not know thoroughly how her case was determined and there is no mechanism that allows unrepresented litigants to understand more about their claims;

(ix)     Lack of language and legal assistance; the Decision was never read to her in her own language; and

(x)     The discriminatory act of the authorities towards claimants by aiming at quick disposal of claims is unacceptable.

19.However, at the hearing after the legal principles in the preceding section had been explained to her, the Applicant said she had no complaints about errors of law, but would leave it to the Court to examine the Decision for such errors.  She confirmed she had no complaint about procedural unfairness or irrationality in the Decision.

Discussion

20.Except for Grounds (6), (8) and (9), all the other seven grounds are general and bare assertions with no particulars.  When asked for particulars, all the Applicant could give is that she did not want to go back to Indonesia because her problems are not solved.  Her confirmation in paragraph 19 contradicts the ten grounds contained in her two earlier submissions.

21.Apart from lacking in particulars, Grounds (1), (7) and (10) are unsubstantiated for obvious reasons.  In respect of Ground (1), the Board gave full reasons for its Decision.  It found the Applicant incredible and her evidence unreliable.  In short, it found the Applicant had failed to establish the factual basis to support her claim for protection under any of the four applicable grounds under the USM.  This is not a case where the Board made a finding of fact without any evidential basis.  On the facts as found by the Board, it could only reject her claim as a matter of law.  The Board has no discretion to allow her claim instead.  There is no substance in this ground.

22.In respect of Ground (7), the source of news mentioned under this ground must be the country of origin information (“COI”). The Board did not arrive at the Decision by relying on any COI.  It was not the Board’s finding that according to the COI it was safe for the Applicant to return because of availability of state protection or internal relocation.  It reached its conclusion on the basis that the Applicant had failed to discharge the burden of proving the factual basis in support of her claim to protection. This ground rested on the wrong premise.

23.In respect of Ground (10), no particulars were given as to what were the discriminatory acts complained of and there is also no evidence that such discriminatory acts indeed brought about quick disposal of non-refoulement claims.  Indeed, quick disposal of litigation and procedural economy are always targets of the courts.

24.As for Ground (6), it is a direct challenge of the finding of fact of the Board, which is not permissible, save for errors of law, procedural unfairness or irrationality in the Decision.  No such vitiating elements have been proved by the Applicant.

25.As for Ground (8), the Director used 17 pages in his Notice to set out the Applicant’s background, the factual background of her claim, her claim as she alleged, the Director’s analysis of the evidence and reasons for its finding.  The Applicant was legally represented by the Duty Lawyer Service at the material time.  The Notice is usually delivered to the claimant via the Duty Lawyer Service.  It is the standard practice of the Duty Lawyer Service to explain the Notice to claimant and advise on the merits of appeal.  It lies ill in the Applicant’s mouth to allege that she does not know thoroughly how her case was determined and that there is no mechanism that allows unrepresented litigants to understand more about how their claims were decided.  The Court notes that part of the applicant’s complaint is about absence of any mechanism that allows her to understand more about her claim. This complaint is incomprehensible.  If she does not understand her own claim, who else could?

26.As for the Applicant’s complaint about lack of legal representation under Ground (10), it was held by the Court of Appeal in Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[11] nor the judgment of FB v Director of Immigration[12] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

27.The Applicants had the benefit of legal representation in presenting her case to the Director.  All the benefits that legal representation could have afforded her were contained in the written submissions, the NCF and answers in the screening interview given by her under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite she was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

28.As for the Applicant’s complaint about lack of language assistance under Ground (10), as a matter of law a claimant is not entitled as of right to language assistance at any time whenever he wants it.  In Karamjit Singh[13], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her native language for her benefit as and when she requires.  She has to use her own resources or find assistance herself from among her friends and her ethnic community.  The Indonesian community is probably one of the largest non-local communities in Hong Kong.  In addition, she has ten years formal education and eleven years experience living in English speaking societies. She must have a working knowledge of the English language.  Indeed, the Applicant was able to file two adequately well written submissions in English. Her language difficulty is exaggerated and unreal.

29.Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, the Director’s Notice, her notice of appeal and the COI.  The Applicant knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service.  She knows what is contained in the record of screening interview which she attended with the assistance of an interpreter and legal representation.  The record had been read back to her in her own language, and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary.  She knows what is written in her notice of appeal prepared by herself.  Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, whenever appropriate to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  The Notice and COI are in English and unfortunately have not been translated.  The Duty Lawyer Service had most probably discussed the contents of the Notice and COI with her when representing her before the Director.  As mentioned above, she should not do nothing and expect the host country would translate the documents to her as and when she requires.  She has to rely on her own means and resources or find assistance herself from among her friends and her ethnic community. 

30.In Ground (5), she complained that she was confused as the hearing bundle was delivered late and she was not provided with language assistance.  She gave no particulars, not to mention evidence, as to when she was served the hearing bundle.  Usually, the bundle is delivered within ten to fourteen days before the hearing.  But most importantly, it must be noted that the Notice had been delivered to her on 20 March 2018, more than ten months before the hearing before the Board.  The Notice must have been explained to her by the Duty Lawyer Service.  As explained above, she must have knowledge of all the documents in the hearing bundle, such as her NCF, the record of screening interview, the notice of appeal etc.  As mentioned above, her language difficulty is exaggerated and unreal.  It therefore lies ill in her mouth to say she was confused.

Overall scrutiny

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 law and key legal principles applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability.  It found the Applicant was not telling the truth and that her evidence is only partly credible but partly not.  It gave detailed reasons for its finding.  In brief, it accepted the background of the claim as asserted by the Applicant but rejected her evidence about the loan from the bank and the harassment by the staff representing the bank.  These are findings of fact which the Court may not interfere.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.  For the above reasons, the Applicant’s leave application is refused. 

Dated the 14^th day of February 2025

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