RINI v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2442/2020

[2024] HKCFI 3673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2442 of 2020

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 be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Rini (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 9 September 2020 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 November 2016 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 21 June 1985 in Jawa Timur, Indonesia. She received 12 years of education and worked as a foreign domestic helper in Hong Kong from 2012 to 2015.

The Claim

3.  The Applicant married her husband (“Husband”) in 2005 by an arranged marriage. Husband was a drug addict and an alcoholic. He failed to pay his debt and their matrimonial home was taken away by the bank. He was violent towards the Applicant and he was a well-known gangster in the local area. He also had friends in the police force and people were afraid of him.

4.  Husband attacked the Applicant when she was pregnant with their first child in 2005. He also damaged the furniture when he was under the influence of drug or alcohol. The Applicant urged him to stop substance abuse and to take up a job, but he responded by slapping her and kicking her. On one occasion, he poured hot water on her right forearm. He also burnt her forearms with lit cigarette butts three or four times.

5.  In 2005, the Applicant went to live with her parents to avoid Husband but she was forced to return home at gunpoint.

6.  Husband attacked the Applicant with a sickle when their first child was about three years old. This attack left a visible scar on her left palm.

7.  The Applicant had once reported Husband to the police and showed them her injuries. The police ignored her and did not record her complaint. She believed that this was because the police officers were friends of Husband.

8.  The Applicant again moved to her parents’ home in 2008 and stayed there peacefully for about a year. Husband visited her regularly and nothing eventful happened to her during that period. The Applicant returned home in 2009 after Husband asked for her forgiveness.

9.  On a day in around 2012, Husband told the Applicant about his intention to start a duck farm. Husband told her that he took out a loan of IDR 50 million from a bank, another loan of IDR 10 million from a loan shark and yet another loan of IDR 7 million from a second loan shark. The Applicant did not guarantee any of the loans and she did not know anything about the loan sharks. Husband asked her to work as a foreign domestic helper in Hong Kong to help with debt payment.

10.  The Applicant complied and came to Hong Kong to work. She remitted some HK$3,000 to Husband five times but he complained that it was not enough. He claimed that he needed more money because he was involved in the drug business. The Applicant borrowed $1,000 from a friend and remitted that money to Husband along with her salaries.

11.  On a day in 2014, one of Husband’s creditors (X) called her about Husband’s outstanding loan. X threatened to kill the Applicant upon her return to Indonesia unless she paid back the loan. After her employment in Hong Kong was prematurely terminated, she received calls from Husband and X asking for money. Both X and Husband threatened to kill the Applicant if she did not pay back the loan. She changed her phone number out of fear.

12.  The Applicant’s mother informed the Applicant that Husband and the loan sharks had approached her to ask for the Applicant’s whereabouts and threatened to kill the Applicant if they saw her. The Applicant’s mother advised the Applicant not to return to Indonesia.

13.  The Applicant claimed that she would be harmed or killed by Husband and his creditors if she were returned to Indonesia.

Procedural history

14.  The Applicant last arrived in Hong Kong on 15 July 2015 and was permitted to remain in Hong Kong as a domestic helper until 9 March 2017 or 2 weeks after termination of her employment. Her employment was prematurely terminated on 31 July 2015. She did not leave Hong Kong within the prescribed period, ie on or before 14 August 2015 and overstayed in Hong Kong.

15.  She was arrested by the police on 12 July 2016 for having overstayed in Hong Kong. By written representations of 21 July 2016 and 1 August 2016, the Applicant lodged the Claim.

16.  The Director had considered the Claim on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

1.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“torture risk”);

2.  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR” and “BOR 2”);

3.  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

4.  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

17.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

18.  On 14 December 2020, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Director and the Board as the proposed respondents and the Board as interested party.

19.  On 8 July 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application. She deposed that she did not wish to follow up on her case and that she wanted to go back to Indonesia (“Withdrawal Application”).

20.  Order 53 rule 4(1) of the Rules of the High Court provides that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

21.  The Board’s Decision was issued on 9 September 2020. As such, the Applicant should have filed the Form 86 latest on 9 December 2020. The Form 86 was filed on 14 December 2020 and it was late.

22.  No application for extension of time to file the Form 86 was made by the Applicant but on 8 July 2024, the Applicant filed the Withdrawal Application applying to withdraw her intended judicial review application because she wanted to return to her home country.

23.  The Applicant was late for 5 days in filing the Form 86. This is not a substantial delay, albeit late. However, the Applicant has not applied for time extension to file the Form 86. No explanation has been provided by the Applicant for her late filing of the Form 86. As such, I have no basis to extend the time for the Applicant to file the Form 86 in this case and this application of the Applicant for leave to apply for judicial review is liable for dismissal on the ground of delay.

24.  For the sake of good order and completeness, I shall consider the merits of the Applicant’s application before deciding on how to dispose of the matters.

25.  Subsequently, the Director informed the court that the Applicant had been removed in November 2024. As such, I proceeded to deal with the Applicant’s application for leave for judicial review and the Withdrawal Application by way of paper disposal.

The DOI Decision

26.  After considering all the relevant circumstances, the Director noted that the low intensity of past ill-treatment from Husband and/or his creditors was indicative of a small future risk of harm upon the Applicant’s return to Indonesia. The Director did not accept that the asserted ill-treatment inflicted upon the Applicant by Husband had attained a minimum level of severity such that non-refoulement protection was warranted. Further, the Applicant had never been harmed by Husband’s creditors and their threats were delivered only over the phone. The Director found that the risk of harm to the Applicant upon her return to Indonesia was low.

27.  The Applicant did not take the first available opportunity to seek protection after her employment was terminated in July 2015 but had instead waited after her arrest in July 2016 to make the Claim. The Director was of the view that such conduct was inconsistent with a person genuinely in fear of threats of being harmed or killed. The Director found that the alleged risk from Husband was not as imminent or substantial as the Applicant claimed.

28.  The Applicant’s problem with Husband was because of his bad temper whilst her problem with Husband’s creditors was monetary disputes. There was no indication that the state was involved in, indifferent to, or had provided any form of encouragement to Husband and/or his creditors in threatening and assaulting the Applicant. The Director was of the view that even if the police at a particular police station had not taken action to assist the Applicant, such acts did not represent the official stance of the Indonesian police or Indonesian government. On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant in Indonesia, if necessary. There were also non-government organizations in Indonesia to help women in need.

29.  There were no substantial grounds for believing that Husband would or could mobilize huge resources to search for the Applicant throughout the country. The Director was of the view that it was also unconvincing that Husband’s creditors would mobilize huge resources to locate the Applicant throughout the country merely because of Husband’s debts. The Director found that internal relocation would be viable to the Applicant. If the Applicant moved to Blitar, Jawa Timur, Surabaya, Bali or Jakarta, Husband and/or his creditors would have great difficulties in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

30.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

31.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board did not believe the Applicant’s account of the loans she said Husband had incurred and the subsequent threats on her life from Husband and the loan sharks. The Board was however prepared to accept that she had suffered domestic violence at the hands of Husband in the past. The Board gave detailed reasons for these findings at §§54-61 of the Board’s Decision.

32.  The Board found that her credibility was also undermined by the fact that she did not immediately raise a claim for protection after her employment contract had been terminated but had instead waited until her arrest to raise the Claim (§§62-66 of the Board’s Decision).

33.  According to the Applicant, she only needed to seek medical attention on two occasions (when Husband poured hot water on her and when Husband attacked her with a sickle), and the injuries from those occasions had no lasting effect on her. The Board was not persuaded that the injuries inflicted by Husband upon the Applicant attained a level of severity such as to lead the Applicant to have genuine and substantial grounds to believe that she would be killed by Husband should she return to Indonesia.

34.  The Board found that the risk to the Applicant was further mitigated by the viability of internal relocation. After considering the Applicant’s situation, the Board found that it was “perfectly feasible” for her to relocate to Jakarta to avoid Husband.

35.  There was no evidence to suggest that any threats or assaults inflicted by either the loan sharks or Husband on the Applicant would be 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. The Board was of the view that COI indicated the existence of state protection in Indonesia.

36.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

37.  In a judicial review, the court does not step into the shoes of the decision makers.

38.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

39.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

40.  The Applicant did not advance any grounds for her intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only stated that: “I don’t want to go back my country, because my husband and loan shark would will [sic] kill me. My husband can’t give back money to the loan shark, cos my Husband has many Gangster Friend in the Area where we and my parent [sic] lived. My husband will be able to locate me. Easily by using this extensive network of Gangster Friends. Wherever I will be located. It will only be a matter of time before the loan shark will locate me. If I were to return to Indonesia.” She then produced the Board’s Decision with covering letter, her non-refoulement claim form, her acknowledgement of the Board’s Decision being explained to her by the Duty Lawyer Service and a legal aid leaflet as exhibits to the Supporting Affirmation but no other supporting documents.

41.  No proper ground for this intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

42.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am 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 high standards of fairness.

43.  The Board found that the Applicant did not suffer any severe, mental or physical, pain or suffering at any stage in the past. She failed to establish that there were substantial grounds or well-founded fear for believing that she would be liable to be subjected to the torture risk or the persecution risk, if she were refouled to Indonesia. She did not have a genuine and substantial risk of being subjected to the BOR 3 risk or a personal and real risk of being arbitrarily deprived of her life in violation of BOR 2. Furthermore, she could safely and reasonably relocate to Jakarta upon her return to Indonesia to avoid the perceived risk of harm. Reasonable state protection would be available to her.

44.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds under the USM. These are finding of facts which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

45.  The Applicant subsequently filed the Withdrawal Application on 8 July 2024 applying for withdrawal of her judicial review case stating that she did not wish to follow up her case and she wanted to go back to her country.

46.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

47.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

48.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

49.  The Form 86 was filed out of time without leave of the court and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with a realistic prospect of success, I accordingly dismiss this application for leave to apply for judicial review.

50.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her address stated in the Withdrawal Application with copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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