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HCAL 97/2024
[2024] HKCFI 1318
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 97 of 2024
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BETWEEN
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Nur Ofi Agustina |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
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 Applicant’s application by Form 86 filed on 8 January 2024 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 22 November 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 May 2023 (the “Notice”).
2. The Applicant is an Indonesian national. She last entered Hong Kong on 2 August 2018 to work as a foreign domestic helper. After her contract was terminated, she was allowed to stay in Hong Kong as a visitor until 29 January 2022. She did not leave Hong Kong within the prescribed period. She was arrested on 9 February 2023 for overstaying and obtaining property by deception. On 24 February 2023, she raised a non-refoulement claim.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. 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 (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims she will be harmed or even killed by her mother and her mother’s friend (“Erna”) upon her return to Indonesia for refusing to work for them by providing sex services.
5. The Applicant, now aged 27, was born in Banyumas, Java, Indonesia. She received 12 years of education and has worked as a shopkeeper, a security guard, a store assistant and a babysitter in Indonesia before coming to Hong Kong to work as a foreign domestic helper.
6. She claimed that in around 2013 (when she was a student), Erna offered her a job. Her mother did not object to Erna’s proposal. Erna took her to a karaoke and told her to serve the clients at the VIP room. She refused and Erna took her home. Her mother told her to follow Erna’s instructions. The Applicant refused and went to her grandmother’s home to stay for a few days before returning to her mother’s home. She told her grandmother and her aunt about Erna’s arrangements.
7. About two weeks later, Erna took the Applicant to a hotel in Purwokerto City and locked her up inside a room. An unknown man then came in and raped her. After the man left, she went to her grandmother’s home and stayed for two or three weeks before her mother took her home.
8. In around 2014, Erna came to the Applicant’s home. Her grandmother tried to stop Erna but her mother intervened. Her mother slapped her. Erna took her to a room in an unknown hotel where she was raped by an unknown man. After that, she was locked up in a room for a few days without food until Erna took her back home. She did not tell the incident to anyone as she knew nobody could help her.
9. After the school examination, the Applicant secretly moved to Jakarta where she found a job and a room to stay. However, three months after she arrived in Jakarta, she was kidnapped by two men whom she believed were Erna’s associates. They took her to a hotel where she was raped. She was then brought back to her mother’s home. Her mother told her to stay and to work for Erna.
10. She stayed at her mother’s home for two weeks and then escaped to Serang City where she found a job and stayed in a boarding house provided by her employer. Four months later, in around 2015, her employer dismissed her and evicted her from the boarding house because he found a condom in her room. She then saw two men, whom she believed were Erna’s associates, waiting outside. She believed Erna’s men put a condom in her room to get her dismissed. The men brought her back to her mother’s home. She stayed at home for about a month. During that period, Erna took her to a hotel twice where she was raped.
11. The Applicant managed to escape from her home in 2015 and fled to Cikarang. She worked as a shop assistant and shared a room with a friend. She discovered she was pregnant and took an abortion pill. Towards the end of 2015, she moved to Bintaro to receive three-month training as a babysitter and then worked as a baby sitter. In around 2017, she went to Tangerang City to receive training as a foreign domestic helper. She briefly returned to her grandmother’s home while waiting for her visa. She claimed that she never saw Erna’s men after she had fled to Cikarang, but they still managed to contact her through telephone or Facebook. On 2 August 2018, she came to work in Hong Kong to work as a foreign domestic helper.
12. She does not believe the Indonesian police would help her, as they would demand bribes before rendering assistance. She also does not believe internal relocation would be feasible because Erna’s men had been able to locate her in the past.
The finding of the Board
13. The Board found the Applicant’s claim incredible. First, her case was entirely based on her bare assertion and there was no corroborating evidence. Second, the Board found it was inherently implausible that no one made a police report against the alleged series of rapes. The Applicant was between 17 and 19 years old when the alleged rapes took place. At the time, she should be mature enough to face those incidents and report against Erna, particularly with the support of her grandmother and aunt.
14. According to the Applicant, her grandmother and her aunt were supportive and protective towards her and were aware of the difficulties she was facing. The Board found there was no good reason why they would have refrained from reporting Erna to the police. Furthermore, the Applicant claimed that her father must have known about the rapes from her grandmother. Her father was said to be caring and loving towards the Applicant. Yet according to the Applicant, he did not even talk to her about the incidents or report the incidents to the police on her behalf. All of the above led the Board to disbelieve the Applicant and reject her evidence. This is the primary basis of the Board’s Decision.
15. The Board went further and assessed the Applicant’s claim on the basis of the evidence as she asserted. It found even on the basis of her evidence she was not entitled as a matter of law to non-refoulement protection under any of the four applicable grounds under the USM.
16. In respect of Torture Risk ground, the Board found that the claimed risk of harm originated from Erna and her mother, who were not public officials. The Applicant was also free to leave the country without interference from the government. There was no evidence of any act or acquiescence by state officials. The Board therefore found there was no involvement in the alleged ill-treatment at any stage by any public official or anyone acting in an official capacity, which is a necessary requirement for the ill-treatment to constitute ‘torture’ as to entitle the Applicant to protection under this ground.
17. In respect of BOR 3 Risk ground, the Board found on the basis of authoritative and credible country of origin information that adequate state protection will be available to the Applicant on her return to Indonesia. Further, she was able to avoid Erna by staying in Cikarang, Bintaro, Tangerang City and Cilacap in the past, which showed the internal relocation is feasible.
18. In respect of Persecution Risk ground, the Board found that the ill-treatment on the Applicant by Erna did not arise on account of race, religion, nationality, membership of a particular social group or political opinion. Hence, she fell outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
19. In respect of BOR 2 Risk, the Board found there was insufficient evidence to establish a risk of severe harm and in any event adequate state protection and internal relocation will be available to reduce or avoid any harm or risk of harm to the Applicant.
20. For the above reasons, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
21. 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
22. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she only exhibited the Decision and a covering letter from the secretariat of the Board. She had been invited by the Court via its letter dated 26 January 2024 to advise the Court of her first language and to file submissions. She responded by saying that her life is still in danger in Indonesia but did not file any submissions. At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about errors of law, procedural unfairness and irrationality in the Decision.
23. In the absence of specific grounds of application, the Court in an application for judicial review 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 disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.
Discussion
24. 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 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 primary basis of the Board’s Decision is that it found the Applicant’s evidence incredible and rejected her case in its entirety. She had therefore failed to establish the factual basis in support of her claim for protection. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that 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. These are finding of facts which 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.
25. The secondary basis of the Board’s Decision is that even if her case were accepted, she is not entitled to protection as a matter of law and fact. Furthermore, it found on the basis of authoritative and credible country of origin information that state protection and internal relocation are available to prevent or avoid the risk of harm if it turned out to be real. Insofar as these are finding of facts, 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. Insofar as these are finding of law, the Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
26. For the above reasons, the Applicant’s application for leave to apply for judicial review is refused.
Dated 13th day of May 2024.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 13/5/2024
Nur Ofi Agustina
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13/5/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21779
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 311/23 (Formerly RBCZ 5000238/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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
[5] [2018] HKCA 524 at [14(1)]
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