ANNI NURIL HAMDATI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2096/2023

[2024] HKCFI 627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2096 of 2023

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 the Applicant being absent in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review be refused; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 23 November 2023 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 17 April 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 24 December 2021 (the “Notice”).

2.  The Applicant is an Indonesian national. She last entered Hong Kong on 9 July 2021 to work as a foreign domestic helper. Her contract was prematurely terminated and she was given permission to remain in Hong Kong until 2 November 2020. She overstayed until 20 January 2021 when she surrendered to the authorities. On 3 March 2021, she raised a non-refoulement claim. 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.

3.  The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to her by post on 9 January 2024 to her address in Yuen Long which was obtained from the Immigration Department on 8 December 2023. Recently, she responded to the Court’s letter sent to her by post at that address on 11 December 2023, suggesting that the address is effective for communication with her. The notice of hearing has not been returned through the post. She never informed the court of any subsequent change of address. There is nothing to suggest that she had not received the notice of hearing or had moved. However, she did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Extension of time to apply

4.  The leave application was filed more than seven months after the date of the Decision sought to be reviewed. Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made more than four months out of time. Extension of time to file the leave application is required.

5.  In AW and Director of Immigration and William Lam[5], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

6.  Merits is usually a very important factor. Where the delay is not very substantial, merits is usually the determinant factor. But it was also held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung[6] that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in this case is so substantial that in the absence of a reasonable explanation, leave may be refused on this ground alone.

7.  The Applicant gave no explanation for the delay in making the leave application in her Form 86 or her supporting affirmation. The opportunity of exploring her explanation with her at the oral hearing was frustrated by her failure to attend. She has no reasonable explanation for the substantial delay. Out of abundance of caution, the Court also examined the merits of her leave application.

The Applicant’s case

8.  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 claimed that she would be harmed or killed by two moneylenders upon her return to Indonesia because of her inability to repay the outstanding debts owed by her late husband to the moneylenders.

9.  The Applicant was born in Blitar, Jawa Timur, Indonesia. She received approximately twelve years of education and has four and a half years of work experience as a domestic helper in Indonesia from September 2015 to September 2017 and later in Hong Kong from March 2018 to September 2020.

10.  Her husband, now deceased, had borrowed money from a moneylender while operating his fish farm between 2010 and 2017. She did not know how much he had borrowed or the identity of the moneylender. In around July 2017, three people visited the Applicant's home demanding repayment of the debt owed by her husband. Her husband fled from the backdoor, leaving the Applicant to deal with those people. They demanded repayment of 10 million Indonesian Rupiah (“INR”) or her home would be seized. They gave her one week to pay and left after three hours without doing her or her family any harm. Her husband returned later but refused to give her any details about the debt. He asked her to go to Hong Kong to make more money and help him repay.

11.  Between July and December 2017, the same moneylender sent men to harass and threaten the Applicant’s family, but they did not cause them any actual harm. The Applicant borrowed two million INR from her father towards the end of 2017 to partial repayment to the moneylender. At about the same time, she moved to the accommodation provided by an employment agency. She learnt from her husband that the moneylender sent men to their home about once a month for five months to collect the debt, but the men did not harm her family.

12.  The Applicant went to work as a foreign domestic helper in Hong Kong in March 2018 and remitted money to her husband to repay the debts. She learnt from her father that the same moneylender was still sending men to collect the debt and that her husband also owed money to another moneylender. Upon learning that her husband only paid interests but not the principal, she remitted the money to her father and asked him to repay the debts instead.

13.  Her husband passed away in November 2019 after a traffic accident. The Applicant sold the fish farm for six million INR and repaid part of the debt owed to the first moneylender. She still owed both moneylenders money and they continued sending men to her father once a month to collect the debts. They told her father that they would kill the Applicant if they found her in Indonesia and if she failed to repay. Her father did not tell her about the threat until October 2020. That was why she decided to overstay in Hong Kong and not to return to Indonesia. The Applicant confirmed that neither she nor her family had been harmed by either of the moneylenders.

14.  The Applicant claims that the Indonesian authorities would not protect her, as they would not help without being paid bribes. She also claimed that internal relocation to other cities would not be viable because she had no money and she had no one to support her.

The finding of the Board

15.  The Board found the Applicant’s claim incredible. It noted that the Applicant gave three different versions about the frequency of death threats issued by the moneylenders. She said in her NCF that since her husband’s death in November 2019 until the date she submitted the NCF in September 2021 the moneylenders had been threatening once a month to kill her, ie a total of 26 times. At the screening interview, she said that the threat continued for about half a year since her husband’s death and stopped since May 2020, ie six times. But at the hearing before the Board, she said the moneylender repeated the threat every month until March 2021. The Board also found the Applicant’s assertion that it was not until October 2020, eleven months after the threat was first delivered, that her father told her about the threats incredible.

16.  The Applicant relied on a document purporting to be a demand letter issued by a moneylender as evidence of her husband’s debt, but the name of the debtor stated in that letter was “Ani Eko” which was not the name of her husband, Eko Budi. She explained the discrepancy on the basis that her name, Anni Nuril Hamdati, was named as a guarantor for the debt. The Board rejected her explanation because that document made no mention of any guarantor.

17.  The Board further held that it was inherently improbable that she would make repayment to the moneylenders without ascertaining their identities. As she was unable to provide details about the identities of the moneylenders and the unsatisfactory state of her evidence, the Board considered she was not a truthful witness and rejected her evidence.

18.  Having dismissed the Applicant’s only ground for claiming protection, ie the alleged threats from the moneylenders, the Board found the Applicant had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Indonesia. Hence, the Board dismissed her appeal against the Director’s Notice.

19.  Nevertheless, the Board also assessed her claim, in the alternative, on the basis of the case as she asserted. The Board made the following further finding. It accepted her evidence that she remarried and her current husband (a Hong Kong citizen) had been helping her repay the debts. The outstanding amounts owed to the two moneylenders as at the time of the hearing before the Board were only HK$2,400 and HK$6,000. Hence, the Board found if she kept up with the repayments, she would be able to pay off the debts and the moneylenders would have no incentive to harm her.

20.  After referring to credible and authoritative country of origin information (“COI”) including the World Factbook published by the United States State Department and to the website of World Population Review, the Board found it difficult for the moneylenders to locate the Applicant if she should relocate to populous cities such as Denpasar or Medan. It considered the Applicant’s fear that she will be located by the moneylender a speculation on her part. It found with her age, education and work experience, it would not be unreasonable to expect her to relocate to Medan or Denpasar upon her return to Indonesia to avoid her risk of harm.

21.  The Board found that the risk she would face upon her return would not exceed the minimum threshold of severity and that her life would not be at real risk of harm. It also found her dispute with the moneylenders were private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the 1951 Convention relating to the status of Refugees and its 1967 Protocol (the “Refugees Convention”). Further, the ill-treatment from the moneylenders did not attain the minimum level of severity and had nothing to do with the Indonesian government. Hence, it does not meet the requirement of ‘torture’ under section 37U(1) of the Immigration Ordinance. There is also no evidence that the Applicant is subject to capital punishment or at risk of genocide.

22.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found, even on the case as she asserted, 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.

The legal principles applicable to judicial review

23.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

24.  In her Form 86, the Applicant advanced the following four grounds of application:

(1)  The Decision was not reasonable and unfair in that the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence. Her right to life is protected under BOR 2 risk ground.

(2)  The Director failed to give proper weight to the presence of state acquiescence. She was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles.

(3)  The Board acted unfairly by placing too much weight on COI without having regard to her personal background and experience.

(4)  The Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond.

Some of these grounds are directed at the Director and some at the Board. For the benefit of the Applicant, it is assumed that all the grounds are directed at both the Board and the Director.

Ground (1) – Unreasonable and unfair

25.  This ground is framed in what appeared to be a very long and heavily loaded paragraph, quoting article 28 of the Basic Law and article 2 of the Bill of Rights and mentioning right to life and the extra-judicial killing which she would face if returned to Indonesia. These are high sounding principles and international obligations which Hong Kong honours to anyone whose life is at risk, provided she meets the criteria in any of the four applicable grounds under the USM. The question is whether the Applicant meets those criteria. The Board was of the opinion that she did not. That is a finding of fact exclusively within the province of the Board. The Applicant disagrees with the finding and complains that the Decision was unfair and unreasonable. Thus, this ground of application boils down to two points; namely whether the Decision was unreasonable and unfair in the public law sense, and whether the Board had given the Applicant sufficient time and chance to arrange the evidence. The Court shall leave the first issue to its overall scrutiny of the Decision.

26.  As for the Applicant’s complaint that the Board did not give her sufficient time and chance to arrange the evidence, it is just an unsupported bald assertion. If she considered she did not have sufficient time to arrange her evidence, she could have informed the Board or sought an adjournment at the hearing for her to do so. There is no evidence from the Decision that she had so complained but was ignored. She also abandon her opportunity to advance arguments on her grounds by her failure to attend the oral hearing. There is no substance in her complaint.

Grounds (2) – State acquiescence; torture at the behest of state law enforcement agencies

27.  For the Applicant’s benefit, the Court treated her reference to the Director as including the Board as well. The Applicant complained that the Director failed to give proper weight to the presence of state acquiescence and the fact that she was tortured at the behest of state law enforcement agencies as well as those in the high ups of political circles; and to take such argument into account. The only torture or ill-treatment the Applicant ever received was the threat of death, the demands for repayment and the bare allegations of harassment of unknown nature which did not cause her or her family any harm. There was no evidence that state law enforcement agencies were involved in those incidents. This ground is obviously copied from other applications for judicial review which has no bearing to the facts of this case.

Grounds (3) – Weighting on COI

28.  The Applicant complains about the weighting given to the COI. After referring to COI from credible and authoritative sources, the Board was satisfied that it would not be unduly harsh to expect the Applicant to relocate to other cities such as Medan and Denpasar to avoid the risk of harm. This is a finding of fact within the realm of the Board to make which this Court in a judicial review will not interfere. The Applicant offered no argument or COI to contradict the COI referred to by the Board and its reasoning.

Grounds (4) – Unfairness and impropriety in assessing the Applicant’s evidence

29.  The Applicant complained that the Board acted unfairly and improperly when assessing whether to accept or reject her explanations and unreasonably required her to respond to questions which she was not in a position to respond. This is a general and un-particularized complaint. The Applicant abandoned the opportunity to provide further and better particulars. The Court shall leave this issue to its overall scrutiny of the Board’s Decision for errors of law, procedural unfairness and irrationality.

Overall scrutiny

30.  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.

31.  The Board’s primary finding is that the Applicant is incredible and rejected her evidence. This finding is a finding of fact solely within the realm of the Board to make which this Court in an application for judicial review will not intervene, save for errors of law, procedural unfairness and irrationality.

32.  The Board also assessed the Applicant’s claim on the basis of her case as she asserted but found she is not entitled to protection under any of the four applicable grounds under the USM. It is not the Applicant’s case that she is subject to a death sentence or at risk of genocide. The Board found that the ill-treatment suffered by the Applicant did not attain the minimum level of severity, that no government or public officials were involved in the ill-treatment of the Applicant, that the disputes between the Applicant and her husband’s moneylenders were private disputes and fall outside the protection of the Refugees Convention. These are mixed finding of fact and of the law. Insofar as they are finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. They are also exclusively within the province of the Board to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. 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 her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

33.  For the above reasons, leave to apply for judicial review is refused.

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