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

HCAL 2335/2019

[2025] HKCFI 1275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2335 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;  or
	consideration of documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

1.  Leave to amend the Form 86 be granted;

2.  Extension of time to file the leave application be refused; and

3.  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 16 November 2018 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 16 November 2018 (the “Notice”), refusing her application for non-refoulement protection.

2.In her supporting affirmation, she annexed a copy of decision from the Board dated 17 July 2019, which dismissed her appeal against the decision of the Director in his Notice of Decision dated 6 November 2018. It is obvious that she was mistaken about the dates of the Decision and the Notice. Hence, leave is given to amend those dates in her Form 86 as aforesaid to give effect to her intention.

Background

3.The Applicant is an Indonesian national. She last entered Hong Kong to work as a foreign domestic helper on 13 October 2014. She overstayed since 3 December 2015 after her employment contract was prematurely terminated. She surrendered to the Immigration Department on 19 July 2016. After a removal order was issued and served on her, she made a non-refoulement claim on 6 February 2017. 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 against the Notice was dismissed by the Board’s Decision. 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 prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims, if returned to Indonesia, she will be harmed or killed by a loan shark (the “loan shark”), for being unable to repay the loan incurred by her husband.

5.The Applicant, now aged 34, was born in Surabaya, East Java, Indonesia. She is married with one son. She had lost contact with her parents and husband. Her son and three siblings are living in Indonesia. She had received nine years’ formal education and had six years’ experience working as a domestic helper in Indonesia, Taiwan and Hong Kong.

6.The Applicant claimed that in mid-2007, her husband borrowed of 50 million Indonesia Rupiah from a loan shark. To avoid repayments, her husband deserted her and she returned to live with her parents. She had no knowledge about the identity of the loan shark, whether her husband had repaid any of the loan and his whereabouts.

7.Since June 2008, the loan shark started demanding repayments from her. To avoid the loan shark, the Applicant went to work in Surabaya in about March 2009. However, the loan shark still went to her parents’ home to ask for her whereabouts.

8.In about May 2012, she returned to her parents’ home. The loan shark and his associates happened to locate her at her parents’ home and demanded repayments. They assaulted her but did not hurt her child. She made a complaint with the police, but she was not aware any follow-up action had been taken.

9.To avoid the loan sharks, the Applicant went to work in Taiwan in October 2012, then in Jakarta and eventually in Hong Kong in October 2014. During this period of time, the loan shark and his associates continued to go to her parents’ home and to threaten to take her child away, if the loan was not settled. They also terrorised her by throwing stones at her window on three occasions. The loan shark also constantly called her parents to utter the same threat and ask for her whereabouts.

10.The Applicant claims that state protection is not available because the police in Indonesia is corrupt. She does not believe internal relocation viable, as she does not have the financial means to move to other parts of Indonesia, and the loan shark could locate her throughout the country through their powerful network.

The finding of the Board

11.The Applicant testified before the Board. The Board accepted that she had been threatened and assaulted by the loan shark, but found no evidence that her pain or suffering was inflicted by or at the instigation of or with the consent or aqua essence of a public official or other person acting in an official capacity for the government. It also found on the basis of country of origin information that adequate state protection was available and that there was no evidence that the state of Indonesia was unwilling or unable to protect her. It found the Applicant had not suffered any severe pain or suffering, physical or mental. It therefore found there are no substantial grounds for believing that she will be subjected to Torture Risk, if refouled.

12.For the same reason, it found the injuries suffered by the Applicant did not attain a minimum level of severity as to entitle her to protection under BOR 3 Risk ground. The Board used the word “maximum” in paragraph 198 of the Decision. But, in the context of that paragraph the word is a typographical error and should be “minimum” instead as the Board noted that the Applicant only received verbal threats from the loan shark and was not subjected to any actual bodily injury or intense physical or mental suffering.

13.It found no evidence that the Applicant will be at risk of death from the government of Indonesia as to entitle her to protection under BOR 2 Risk ground.

14.It found the Applicant’s claim under Persecution Risk failed because her risk arose out of a personal dispute and not on account of any reasons protected under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

15.Applting the law applicable to non-refoulement protection to the facts it found, the Board found the Applicant is not entitled to protection under any of the application grounds under the USM. Hence, it dismissed her appeal.

Legal principles applicable to judicial review

16.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

17.The Applicant did not advance any grounds for judicial review in her Form 86 or her supporting affirmation. At the hearing, after the applicable law relating to judicial review had been explained to her, she confirmed she had no complaints about errors of law, procedural unfairness and irrationality in the Decision. She said she does not want to return to her home country for she had become an LGBT. She has been taking testosterone once every two weeks for the last seven years and she looks like a man. She said she could not return to Indonesia because LGBT are not accepted in her home country in which the majority of the population are Muslims. She handed in a written submission reiterating the above and her fear of persecution, if refouled. She asked the Court to consider her submissions in her Notice of Appeal dated 16 November 2018 filed with the Board.

18.The Court called for a copy of her Notice of Appeal from the Board. In her submission filed with the Notice of Appeal, she said she is not satisfied with the decision of the Director in the Notice. She repeated the threats she had from the loan shark and asserted that her life will not be safe in her home country. She had lost contact with her family, had nowhere to stay and had no one to protect her.

19.The Applicant had never raised the issue of her fear of persecution by reason of her being an LGBT before the Director or the Board. In her Notice of Appeal to the Board, she claimed she is in fear of harm from the loan shark only. Even on her new assertion, she only became an LGBT seven years ago, ie 2018. That was four years after she had come to Hong Kong and six years after she was ever threatened by the loan shark. Her gender issue never form part of the Decision. As far as the Decision is concerned, the Applicant confirmed she had no complaint about errors of law, procedural unfairness and irrationality. There are no grounds to justify a review of the Decision which the Applicant confirmed has not been tainted by vitiating elements.

20.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 assessed the Applicant’s claim on the basis of her case as she asserted. It was on that basis that the Board found the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as they are finding of fact, 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. 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 her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

21.As there are no merits in the leave application, both extension of time and the leave application are refused.

Dated the 1^st day of April 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