Dorkas Gadi Maya and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2636/2019 on BabelCite. This High Court CFI judgment was delivered on 24 April 2025.
1. This is the Applicants’ amended application by Form 86 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”) dated 8 August 2019 in respect of the 1 st Applicant (“Decision (1)”) and dated 3 June 2021 in respect of the 2 nd Applicant (“Decision (2)”). By these Decisions, the Board dismissed respectively their appeals against the decision of the Director of Immigration (the
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HCAL 2636/2019 [2025] HKCFI 1655 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2636 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge To: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is the Applicants’ amended application by Form 86 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”) dated 8 August 2019 in respect of the 1st Applicant (“Decision (1)”) and dated 3 June 2021 in respect of the 2nd Applicant (“Decision (2)”). By these Decisions, the Board dismissed respectively their appeals against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 August 2018 in respect of the 1st Applicant (“Notice (1)”) and dated 12 October 2020 in respect of the 2nd Applicant (“Notice (2)”), refusing their applications for non-refoulement protection (collectively, the “Notices”). The leave application was initially filed by the 1st Applicant on behalf of herself on 10 September 2019. It was amended pursuant to an Order of this Court dated 2 June 2022 by adding her daughter, ie the 2nd Applicant, as a party. 2.The Applicants are Indonesian nationals, now aged 48 and 5 respectively. They are Roman Catholics. The 1st Applicant had worked as a foreign domestic helper in Hong Kong since August 2009. She last entered Hong Kong for employment on 11 December 2012 and overstayed since 24 March 2013. She surrendered to the Immigration Department on 23 February 2016. On 27 June 2016, she made a claim for non-refoulement protection. In due course, her 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 (1). Her appeal against Notice (1) was dismissed by the Board’s Decision (1). 3.The 1st Applicant developed a relationship with an Ugandan who is also a non‑refoulement claimant. They are not married. The 1st Applicant then gave birth to the 2nd Applicant on 24 November 2019. She made a non-refoulement claim on behalf of the 2nd Applicant. The 2nd Applicant’s claim was rejected by the Director’s Notice (2) and her appeal against Notice (2) was dismissed by the Board’s Decision (2). The Applicants now seek leave to judicially review both Decision (1) and Decision (2). Legal representation for the 2nd Applicant 4.As the 2nd Applicant is a minor, the 1st Applicant representing her had been advised by letter of this Court dated 4 February 2025 of the requirements under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that her specific interest may be fairly put before the court. She had been advised to seek legal representation from a private lawyer or from the Legal Aid Department. Their application was scheduled to be heard after three months to enable her to make the arrangements. 5.The Applicants were unrepresented at the hearing. The 1st Applicant acknowledged having received the said letter and said that “her husband” had applied for legal aid on their behalf and they are waiting for result of the application. Further discussion revealed that her “husband” had not applied for legal aid from the Legal Aid Department but had only sought assistance from the Justice Centre, a non-governmental organization. The 1st Applicant said she could not afford private legal representation and asked for an adjournment to enable her and the 2nd Applicant to apply for legal aid. However, the Court noted that they had in fact applied in July 2021, but their application was refused on 17 September 2021. It would be futile to apply again. 6.Having regard to the underlying objectives stated in Order 1A rule 1 of the Rules of the High Court, in particular the need to ensure that a case is dealt with as expeditiously and as reasonably practicable and with a sense of reasonable proportionality and procedural economy, the Court explored with the 1st Applicant her ability in representing the 2nd Applicant. She confirmed that the 2nd Applicant’s claim is based on the same facts as hers and she could present her case to the Court and hence the 2nd Applicant’s as well. Having considered the applicable law, the re-amended leave application, the issues raised, the fact that the Applicants had been legally represented before the Director, that no new evidence would be advanced, and the 1st Applicant’s expressed intention not to seek private legal representation, the Court was of the opinion that despite the lack of legal representation, their leave application may be justly determined without prejudicing the interest of the 2nd Applicant. The Court therefore considered the lack of legal representation a mere irregularity, which would not render the proceedings void. After giving the Applicants half an hour’s break, the Court proceeded to hear their leave application. The Applicant’s case 7.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the 1st Applicant for herself and for the 2nd Applicant with legal assistance and the record of her screening interviews in the presence of her lawyer. In gist, she claims, if returned to Indonesia, she will be harmed or killed by a creditor because her parents’ failed to repay a loan borrowed by them from the creditor. 8.The Applicant had five siblings. She had worked in Malaysia as a domestic helper from 2003 to 2009. Her parents used to borrow money from the creditor who is a staff of a co-operative store in Sumba for their business. They repaid the loans and there was never any problem. At some point of time unknown to the 1st Applicant, they took out a loan from the creditor and were unable to repay. When the Applicant returned to Indonesia in 2009 after completing her employment contract, she found her family was no longer in her hometown. She was told by her neighbours that the creditor had taken over all the property and house of her family as her parents had failed to repay the loan. She has no knowledge when this loan was taken out, the amount of the loan and the amount outstanding. She knows the creditor is a famous and strong politician with huge influence and a powerful leader in her hometown, but she does not know his name or the political party to which he belongs. She does not know the name and location of the store at which the creditor worked and whether he was the owner or just a shopkeeper. She had never encountered him. For fear that the creditor might send his men to kill her if she did not repay the loan for her parents, she came to Hong Kong to work as a foreign domestic helper on 6 August 2009. 9.She said at the screening interview that while working in Hong Kong, she got in touch with her brother, Yulius, who told her that the creditor chased the family members who ran off in different directions and that the creditor caught her other brother, Fery, and killed him. She said Yulius was 13 years old then and did not actually witness the killing of Fery but was informed about it through SMS message from their aunt’s daughter. The Board’s finding in Decision (1) 10.The 1st Applicant testified before the Board in her appeal. The Board found her evidence lacking in detail of important elements of her claim, internally inconsistent and contains numerous assertions that are without any factual basis. It found little of her evidence that the Board considered reliable. She could not provide details of the loan and the creditor. She said her parents borrowed a huge amount of money, but conceded that she did not know the amount borrowed. She also assumed without any basis that the creditor was rich and had strong influence. Her account of Fery’s death is based on double hearsay from people who were not present at the scene of Fery’s death. The Board found she had failed to establish by credible evidence that any loan existed or remains outstanding. On her own evidence, she has also not suffered any ill‑treatment or harm or been threatened by the creditor. 11.Even if the loan exists and remains outstanding, the Board found there is nothing to suggest that the creditor would consider her responsible and pursue her for repayment. The fact that the loan was taken out from the local co-operative store also suggests that it was legitimate rather than illegitimate from a loan shark. According to authoritative and credible country of origin information (“COI”), loan sharks in Indonesia are more likely to seize collateral than to resort to violence. If the creditor had seized her family’s house and property, the Board found it difficult to see why the creditor should have any interest in continuing to pursue the debt. It also considered the harm and risk localised in the 1st Applicant’s hometown and could be mitigated by internal relocation. 12.Since coming to Hong Kong in 2009, the 1st Applicant had returned to Indonesia and stayed for two weeks. She encountered no difficulties entering and exiting Indonesia. She did not claim she had any dealings with the government, police or any other authorities in Indonesia nor that they have any adverse interest in her. She had not presented any evidence to suggest that she would be at risk of harm from the authorities, if refouled. 13.She had not claimed to have suffered any harm because of her religion in the past nor had she expressed any fear that she would be harmed because of her religion, if she was refouled to Indonesia. Despite that, the Board made specific enquiries with the 1st Applicant whether she had ever encounterd any problems as a Roman Catholic in Indonesia in the past and she confirmed she had not, nor did she have any fear of harm on account of her religion if she returned to Indonesia. According to credible COI, the majority of the population of the 1st Applicant’s home province of East Nusa Tenggara are Roman Catholic. The Board therefore did not consider there are substantial grounds for believing she would be personally at risk of persecution on account of her religion, if refouled to Indonesia. 14.On the basis of the COI, the Board was satisfied that despite the deficiency and widespread corruption in the Indonesian police, the government has taken steps to improve the situation and to combat corruption. It found reasonable state protection would be available, if the 1st Applicant was returned to Indonesia. 15.In conclusion, the Board did not consider there are substantial grounds for believing the 1st Applicant would be at real risk of any proscribed harm from the creditor if she returned to Indonesia. It further found that if she would be at risk, such risks are localised in ther home town and may be mitigated by internal relocation. 16.Applying the law applicable to non-refoulement protection to the facts found, the Board found the 1st Applicant is not entitled to protection under any of the applicable grounds under the USM. Hence it dismissed her appeal. The Board’s finding in Decision (2) 17.The 1st Applicant also testified in the 2nd Applicant’s appeal. The 2nd Applicant’s claim is founded on the same facts as those relied on by the 1st Applicant. The 1st Applicant updated the Board about the current situation. She said she was still in contact with her parents who are still living in Sumba. She last spoke with them on 10 April 2021 and they did not say anything about the loan. She had also spoken with her youngest sister who is living in Malaysia. She said her sister did not say anything about the loan either. She believed she would be killed, tortured or treated badly by the staff of the co-operative store, if she returned to Indonesia. She confirmed that the only harm she feared for herself and the 2nd Applicant is related to the loan from the staff of the co-operative store to whom her parents owed money. In essence, the 2nd Applicant’s claim is that by extension she is at risk of the same fear and harm suffered by the 1st Applicant. 18.The Board made similar finding of fact in the 2nd Applicant’s appeal as that in the 1st Applicant’s. In addition, though not so raised by the 1st Applicant, it made specific enquiries about possible harm and risks specific to the personal circumstances of the 2nd Applicant, such as her religion as a Roman Catholic and her status as a child of mixed-race. The 1st Applicant confirmed she had never encountered any problems as a Roman Catholic in Indonesia in the past nor did she have any fear of harm on account of her religion if she returned to Indonesia. She also confirmed she had no concern that the 2nd Applicant might be disadvantaged, discriminated or suffer harm because of her mixed-race status. The Board did not consider there are substantial grounds for believing the 2nd Applicant would face a real risk of any of the proscribed harm if returned to Indonesia. Even if she would, the Board considered such risks are localised to the 1st Applicant’s home town and may be mitigated by internal relocation and state protection. Legal principles applicable to judicial review 19.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 20.The Applicants did not advance any grounds of review in their leave application. In the 1st Applicant’s supporting affirmation, she reiterated that their lives will be in danger if refouled. After the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for her. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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. Overall scrutiny 21.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 considered the 2nd Applicant’s leave application separately from the 1st Applicant’s and took into account the personal circumstances of the 2nd Applicant in particular her religion and status as a child of mixed-race when assessing her claim. 22.The Board analysed the evidence carefully, tested it against common sense, inherent probability and against authoritative and credible COI. It basically accepted the Applicants’ evidence, but found the evidence lacking in details of essential elements of their claim and part of her claim was based on double hearsay from people who did not have first hand information of the matter in issue. The Board found little of their evidence is reliable. It gave full reasons for its finding. It was on that basis that the Board found the Applicants had failed to establish the factual basis to support their 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. Conclusion 23.For the above reasons, the Applicants’ leave application is refused. Dated the 24th 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 [1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) [3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol [4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 [5] [2018] HKCA 524 at [14(1)] | ||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment