LUSI v. TORTURE CLAIMS APPEAL BOARD

HCAL 321/2024

[2024] HKCFI 1109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 321 OF 2024

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 / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review be granted;

2.  Leave for the Applicant to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 28 June 2023 be granted;

3.  The Applicant do issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule of the RHC (Cap 4A); and

4.  The Applicant do serve a copy of the Originating Summons together with all the relevant documents on the Torture Claims Appeal Board as respondent and the Director of Immigration as interested party.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Indonesia who last arrived in Hong Kong on 31 January 2021 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 June 2022 or within 14 days of its early termination, but when her employment was prematurely terminated on 26 July 2021, she did not depart and instead overstayed, and was arrested by police on 17 October 2022. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Indonesia she would be harmed or killed by her husband’s creditor over his unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Blitar, Indonesia. After leaving school she worked in the factory, married her former husband and raised a family with a daughter in her home district.

3.  In 2001 she went overseas to work as a domestic helper first in Singapore and then in Hong Kong starting in 2003 until 2016 when she returned to Indonesia and subsequently divorced her husband and then started a relationship with another man whom she later married, but as both of them were without jobs, her husband in 2018 used her name to borrow a loan from a loan shark with monthly interest payments until full discharge of the loan, for which the Applicant signed an agreement with the loan shark in person on her husband’s instruction, and to assist him with the repayments the Applicant in January 2021 came to Hong Kong again to work as a foreign domestic helper and to remit money to him to help with his loan repayment.

4.  However, later in the same year when she was unable to contact her husband on his mobile phone, she was subsequently informed by her neighbour that her husband had sold their house and disappeared with another woman, and that thereafter the loan shark had sent men looking for her and her husband everywhere demanding for repayment of the loan and making death threats against them, and so after her last employment was terminated in July 2021, the Applicant was afraid to return to Indonesia and therefore overstayed in Hong Kong, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 December 2022 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 13 February 2023 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband’s creditor and followers upon her return to Indonesia as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her husband’s loan, that in any event it was a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 277 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Jakarta where it would be difficult if not impossible for the loan shark to locate her.

7.  On 20 February 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, in which she set out in details the grounds of her appeal (see section 2 of her notice of appeal), and for which she attended an oral hearing on 5 June 2023 before the Board but elected not to give any evidence or to answer questions from the Board. On 28 June 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found several aspects of the Applicant’s case that raised issues relating to the general credibility of her claim but which she failed to give evidence or to answer questions at the hearing so that the Board could have the opportunity to receive further information to assist it in deciding the outcome of her appeal or to put questions to her to clarify her rather vague and generalized statements relating to the claimed loan from the loan shark that the Board is not persuaded that the Applicant has given a truthful and reliable account of events which she claimed to have occurred in the past, that most of her evidence is based on what she claimed to have heard from third parties without any personal knowledge which amount to no more than hearsay that the Board attached little weight to them that it is not persuaded that the Applicant had entered into any loan agreement with any loan shark in 2018 as alleged, and that even if the loan were true that it was a personal financial arrangement between them with no state involvement, nor was the Board persuaded that she had been threatened with serious harm or death by the loan shark and concluded that the Applicant had failed to establish that there is any real risk or chance that she would suffer serious harm or death over any unpaid debts owed to the loan shark if refouled to Indonesia that her claim for non-refoulement protection failed on all the applicable grounds.

9.  On 15 February 2024 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date to which she just attached a copy of the decision and repeated her claim as before that her life would be in danger in her home country, nor did she request any oral hearing for her application.

10.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.  As the last day of the three-month period for her to file her form 86 fell on 28 September 2023, the Applicant was therefore more than 4 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.  In the Applicant’s case, a delay of more than 4 months must be considered as substantial and inordinate, for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 28 June 2023 to her last reported address without being returned through undelivered post, and although it is noted that she had subsequently been arrested and detained by the Immigration Department when her Form 86 was eventually issued, I am not satisfied that her detention could justify her such serious delay.

13.  As for the merits of her intended application, as noted above that the Applicant also failed to put forward any ground for her intended challenge in her Form or affirmation. Nevertheless, given the seriousness of the issue at hand and that her life and limbs are said to be at stake, the court will adopt an enhanced standard in scrutinizing the Board’s reasons for rejecting her claim and dismissing her appeal/petition as stated in the decision.

14.  As noted in [8] above, the Board rejected the credibility of the Applicant’s claim of fear of harm from the loan shark essentially on the basis of her failure to give oral evidence or to answer questions from the Adjudicator at her appeal hearing so as to clarify certain aspects of what the Board described as vague and generalized statements relating to her claim that it was not persuaded that she had given a truthful and reliable account of events which were otherwise based on hearsays and speculation, as it stated in the decision, starting first with what happened at the hearing:

“The Hearing

9. Having regard to the nature of the case and the issues raised, the Board directed that a hearing be conducted, to enable the Board to determine this appeal/petition by way of a fresh consideration of the Appellant’s claim for non-refoulement protection on all applicable grounds.

10. At the hearing, the Appellant was assisted by an Indonesian interpreter. The Appellant indicated that she could understand the language spoken by the interpreter. The Board outlined the procedure which it proposed to adopt for the hearing, and explained to the Appellant that there were aspects of her claim which the board wished to clarify by asking her some questions.

11. The Board also explained to the Appellant that she was not obliged to give evidence, or answer questions, unless she wished to do so. The Appellant said that she had understood what the board had explained, and she indicated that she did not wish to give evidence, or to answer questions.

12. In the circumstances, the Board brought the hearing to a conclusion, and indicated to the Appellant that the Board’s decision would be issued in due course.”

15.  I should pause here to note that it does not appear from the decision that in pointing out to the Applicant that there were some aspects of her claim that the Board wished to clarify with her, the Adjudicator did not however identify or specify to her what aspects they were that needed to be clarified at the hearing either before or after she had elected not to give evidence or to answer questions, or to point out to her that without which that her credibility may be impeached.

16.  The Board then in its decision ([25] – [42]) set out the Applicant’s case as contained in her NCF, and proceeded to discuss the credibility of her claim as follows:

“Discussion

The Appellant’s Credibility

43. As indicated above, there are several aspects of the Appellant’s case which raise issues relating to the general credibility of the Appellant. Had the Appellant given evidence and answered questions. The Board would have had an opportunity to receive further information to assist the board in deciding the outcome of this appeal/petition.

44. In this appeal/petition, it is incumbent on the Appellant to establish, to the low standard required, that there is a real risk, or a real chance, that the Appellant will be subjected to serious harm, even death, for the reasons claimed in the NCF, if she is refouled to Indonesia.

45. Since, the Board has not had an opportunity to put questions to the Appellant to clarify her rather vague and generalized statements relating to the claimed loan from Ms T, the Board is not persuaded, on the balance of probability, that the Appellant is giving a truthful and reliable account of events which she says occurred in the past.

Hearsay and Speculation

46. Much of the Appellant’s evidence, is based on what she says she had heard from third-parties. The Appellant has no personal knowledge of these matters, which amount to no more than hearsay.

47. While hearsay evidence is not, of itself, inadmissible, the weight which can be attached to such evidence is, by its nature, greatly reduced. Hearsay, on its own, cannot prove the truth of facts asserted by way of such evidence. Speculation, can rarely support any aspect of the Appellant’s claim.

48. For the reasons stated, the Board can attach little weight to the Appellant’s evidence which amounts to hearsay, where that evidence is not supported by any other credible evidence.

Past Events

49. On the totality of the evidence, the Board is not persuaded, on the balance of probability, that the Appellant entered into a loan agreement with Ms T in 2018 as the Appellant claims, or at all.

50. Even if it is assumed that the Appellant was given the loan by Ms T in the circumstances claimed by the Appellant, this was a personal financial arrangement between the Appellant and Ms T. There was no state involvement in the arrangement.

51. The Board is also not persuaded that the Appellant has been threatened with serious harm, even death, at the hands of Ms T, if the Appellant is refouled to Indonesia, as the Appellant has claimed, or at all.

Future Risk

52. For the reasons stated, the Appellant has failed to establish, even to the low standard required, that there is a real risk, or a real chance, that she would suffer serious harm, even death, because the Appellant has not repaid Ms T the principle sum of the claimed loan, together with interest thereon, if the Appellant is refouled to Indonesia.”

17.  On these bases the Board proceeded to reject the Applicant’s claim on all the applicable grounds, dismissed her appeal/petition, and confirmed the Director’s decision.

18.  Firstly it seems clear to me that the Board decided the appeal against the Applicant due to her low general credibility and the lack of opportunity to test her credibility further through oral examination after she elected not to give oral evidence or to answer questions so as to clarify certain aspects of her claim which it otherwise found vague and generalized and based primarily on hearsay and speculation but which the Board failed to identify or specify to the Applicant at the hearing, nor did the Board later in the decision explain why such aspects of her case when left unclarified with oral evidence led to its conclusion that it was not persuaded that the Applicant did enter into a loan agreement with the loan shark as claimed.

19.  This is notwithstanding that the Board had or was supposed to have, for the purpose of the appeal, taken into account the materials and information earlier provided by the Applicant to the Director and contained in the hearing bundle available before it for the appeal hearing, but there does not appear to me any or proper elaboration in the decision as to why the Board found the Applicant’s statements relating to her claimed loan vague or generalized, or why it was not persuaded that she has given a truthful or reliable account of events which occurred in the past in support of her claim.

20.  While the Board did in [50] of the decision as noted above go on to find, on the assumption that the Applicant was indeed given the loan by the loan shark in the circumstances as claimed that it was a personal financial arrangement between the 2 of them without any state involvement, somehow the Board did not, and in my view very much unfortunately, go on to assess whether the option of state protection and/or internal relocation would be available to the Applicant to negate such risk if refouled to Indonesia, as the Director clearly did in his decision.

21.  As such, and as in Re Hidayah [2018] HKCA 595 where the non-refoulement claimant did not appear at the appeal hearing before the Board which then dismissed her appeal as it was unable to determine the credibility of her assertions and whether there was a real risk of harm, the Court of Appeal in allowing the appeal and giving leave to apply for judicial review of the Board’s decision stated at [15]:

“The Board decided the appeal against the application because it was unable to determine her credibility due to her failure to attend the hearing, and, in the absence of oral evidence, it was unable to determine whether there was a real risk or there were substantial grounds for believing that the applicant would suffer the harm she claimed to fear if she were to return to Indonesia. This is notwithstanding the Board had, in considering the appeal, taken into account the materials in the hearing bundle supplied by the director (see [10] of the Board’s decision). There was no elaboration on why the Board’s inability to determine the credibility of the claim and whether the claimed fear of harm was well-founded should lead should lead to a dismissal of the appeal. As we understand the Board’s decision, it had not made any finding, and there was no adverse finding, on the credibility of the applicant’s case or on whether there was a basis for the claimed fear of harm. Although an applicant bears the burden of satisfying the Board that the claimed fear and risk is well-founded, if no adverse finding of credibility could be made on an applicant’s case, the Board would have to proceed to analyse and assess his claim against all applicable grounds on the basis that his case is plausible.”

22.  It seems therefore in the present case that it is reasonably arguable that the Board had failed to give any or sufficient reasons for its finding that the Applicant’s claim of entering into a loan agreement with the loan shark in 2018 as not credible in dismissing her appeal against the Director’s decision.

23.  Furthermore, and as noted above at [14], in explaining to the Applicant at her appeal hearing that there were some aspects of her claim which the Board wished to be clarified by asking her questions, but at the same time that she was not obliged to give evidence or answer questions in her appeal hearing, the Board did not point out to the Applicant what aspects of her claim that needed clarification from her, and that without which the credibility of her claim may be impeached, so that she may change her mind about not answering questions from the Board or at least to have the opportunity to reply or explain or otherwise deal with such aspects of her claim to which her attention is drawn, as procedural fairness or high standards of fairness would require that a non-refoulement claimant to be so accorded, and as held by the Court of Appeal in Re Masud MD [2021] HKCA 1449 to be essential to fair play and fair dealing of witnesses:

“31. Having carefully considered the materials before the Court, we have come to the view that the Board, in coming to its decision, had not accorded the procedural fairness or high standard of fairness that the applicant was entitled to. Having decided to call an oral hearing and when such hearing was indeed held and attended by the applicant in person, all the rules of fairness that are required in an oral hearing would come into play.

32. One of such rules that may be of relevance is the rule in Browne v Dunn. The rule requires that if a cross-examiner intends to challenge a witness’s evidence on a particular point as being untruth, questions must be put to him to give him notice that his credibility on that evidence would be impeached. The essence of the rule is that where it is intended to suggest that a witness is not speaking the truth or is lying on a particular point, or if there is an intention to impeach the credibility of the evidence of the witness, this should be pointed out to him, so that he may have the opportunity of replying to, explaining or otherwise dealing with the aspect of the evidence, allegations or accusations to which his attention is drawn. If this is not done, the court would not know the explanations or information which the witness might have been able to provide if he had the opportunity to respond. It is not only a rule of professional practice and a rule of conduct to be observed by the cross-examiner, but is essential to fair play and fair dealing with witnesses. Allegations directed against documents produced by a witness are also covered by this rule.”

33. There is also no need to put every minute detail of the case to the witness. The question is whether the witness was given notice that some aspects of his evidence would not be accepted or his credibility is that regard would be impeached.

…

36. In any event, since the rule in Browne v Dunn is essentially a rule of fair play and professional practice as at present advised we can see no reason why it should not by analogy apply in non-refoulement claim hearings which require a high standard of fairness.”

24.  Given the circumstances in which the Board explained to the Applicant at her appeal hearing of her right to elect not to give evidence or to answer questions regarding her claim without pointing out to her what aspects of her claim that required clarification, and that without which may impeach the credibility of her claim, it is in my view reasonably arguable that the Board had failed to accord the required procedural unfairness or high standards of fairness to the Applicant in its assessment or determination of the credibility of her claim.

25.  In the premises, and for the reasons given, I am of the view that the Applicant’s intended application for judicial review of the Board’s decision is reasonably arguable on the grounds as stated in [22] and [24] above, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

26.  Accordingly I extend time to her late application and grant leave for her to apply for judicial review of the Board’s decision, and direct that she shall file and issue the originating summons within 14 days of this decision, and to serve a copy thereof together with all the relevant documents on the Board as respondent and the Director as interested party.

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