SULTONIAH BUKHORI v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 636/2021

[2021] HKCFI 2086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 636 of 2021

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision (the “Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 23 April 2021.

2.  The Applicant is an Indonesian national.  She came to Hong Kong in 2008 to take up employment as a foreign domestic helper.  Her employment contract was terminated on 5 September 2020.  She was given permission to stay as a visitor until 18 October 2020.  On 12 October 2020, she lodged a non-refoulement claim.  During her stay in Hong Kong, she developed a relationship with a Pakistani and gave birth to a son in September 2019.  Her Pakistani partner has returned to Pakistan.

3.  In due course, her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].

4.  By a Notice of Decision dated 12 January 2021 (the “Notice”), the Director of Immigration (the “Director”) rejected her claim.  She appealed to the Board against the decision of the Director in the Notice.   Her appeal was dismissed by the Board on 23 April 2021.  On 5 May 2021, she applied for leave to apply for judicial review of the Decision of the Board.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) prepared by her with assistance of the Duty Lawyer Service.

6.  The Applicant returned to Indonesia in September 2019 to attend her father’s funeral.  Her mother told the Applicant that she had borrowed a lot of money from various money lenders to pay for the father’s medical expenses.  The Applicant approached a moneylender and borrowed 150 million rupiah to settle those loans.  Her loan was to be repaid after she returned to work in Hong Kong.  She returned to Hong Kong in December 2019 but was unable to repay the loan.  She received telephone demands for payment from her moneylender.  In March 2020, the number of telephone calls increased and she was threatened with assaults and death.  The moneylender threatened to kill her and chop off her son’s limbs.  The moneylender also went to her mother’s home three to four times a week demanding repayment.

The finding of the Board

7.  The Board found some inconsistencies in the Applicant’s evidence which led to concerns about her credibility.  The Board found she exaggerated the risks and danger from the moneylender.  However, even on the basis of her evidence, the Board found the feared harm and risk do not meet the criteria required for protection under any of the four applicable grounds under the USM.

8.  In respect of Torture Risk ground, the Applicant bears the burden of proving she will suffer “torture” within the meaning of section 37U of the Immigration Ordinance.  One of the requirements of “torture” under the section is that it is inflicted by, or at the instigation of, or with the consent or acquiescence of, a public official or other person acting in an official capacity.  As the moneylender is a non-state agent and the government would be able to offer protection to the Applicant, her claim falls outside the Ordinance.

9.  In respect BOR 3 Risk ground, the Applicant must prove that the ill-treatment she will receive would attain a minimum level severity and a genuine and substantial risk of being subjected to such ill-treatment.  As the Applicant, her mother and brother had not been ill-treated by the moneylender, the Board found even on the basis of her claim, it was unlikely that she would be severely punished or harmed on her return to Indonesia. 

10.  In respect of Persecution Risk ground, the Applicant must prove a well-founded fear of being persecuted for reasons specified under the 1951 Convention relating to the status of Refugees, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion (the “Convention reasons”). On the Applicant’s case, the reason for her persecution arose out of her inability to repay her loan in a moneylending transaction and not for any of the Convention reasons.  Her claim falls outside this ground.

11.  In respect of BOR 2 Risk ground, the Board held that based on the above founding of fact, the Applicant has failed to establish there is a real risk of danger against her life from the money lender or her relatives should she be refouled.

12.  Furthermore, the Board found that state protection and internal relocation is a viable options to prevent or avoid the harm and risk.

The grounds of application    

13.  In her notice of application for leave to apply for judicial review, the Applicant repeated her reliance on the NCF and her right to life under BOR 2.  She alleged that the Decision is not fair or reasonable in the Wednesbury sense.  But she gave no particulars.

14.  At the hearing, attempts were made to solicit from her the grounds of her application and the basis to support her allegation that the Decision is unreasonable and unfair in the Wednesbury sense.  She said she did not understand.  Obviously, the grounds were prepared by someone on her behalf without proper instruction.  She said she could not return to Indonesia and she wanted to get protection for her and her child.  She admitted that she had the services of the Duty Lawyer and interpreter in presenting her case before the immigration officer and that she had the assistance of an interpreter in presenting her appeal before the Board.  She accepted there was no procedural irregularity in the appeal.

15.  In the absence of specific grounds of application, 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.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to Indonesia.  In effect, she is seeking to challenge the Board’s finding of fact that she and her child would not face any real harm or risk if they are returned to Indonesia and that in any event state protection and internal relocation are viable options to prevent or avoid the risk.  The function of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success.

Conclusion

16.  For the above reasons, the Court refused the Applicant’s application for leave to apply for judicial review.

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 33 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