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

HCAL 87/2022

[2024] HKCFI 3101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 87 of 2022

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of 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 the Applicant’s application by Form 86 filed on 26 January 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 13 July 2021 (the “Notice”) and the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 13 January 2022 (the “Decision”) dismissing her appeal against that Notice.

2.  It is trite law that the decision of the Director in his Notice is not reviewable by judicial process because there are established statutory procedures of appeal to the the Board[1] and the Applicant has invoked those procedures. The Director’s decision in the Notice s was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[2]. The leave application in respect of the Director’s decision on the Notice is refused.

3.  On 10 September 2024, the Court received a memorandum dated 5 September 2024 from the Director of Legal Aid notifying the Court that the Applicant had applied for legal aid. Allowing for the usual six weeks’ legal aid stay, the Court scheduled a hearing of the leave application on 28 October 2024.

4.  At the hearing, the Applicant informed the Court that she had not yet received the result of her legal aid application. She said she had no objection to the Court lifting the legal aid stay and proceeding with the hearing of her application. Having read the Decision, the grounds of application, the papers and considered all the circumstances, the Court was satisfied that the Applicant would not be prejudiced for lack of legal representation. Accordingly, the Court lifted the legal aid stay and proceeded to hear her leave application.

Background

5.  The Applicant is an Indonesian national, now aged 41. She last entered Hong Kong on 15 March 2019 to work as a foreign domestic helper. Her employment contract was prematurely terminated but she did not leave Hong Kong within the prescribed period and overstayed. She surrendered to the Immigration Department and made a non-refoulement claim by way of written representation on 20 April 2021.

6.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4]; Persecution Risk[5]; and BOR 2 Risk[6]. By the Notice, the Director rejected her claim. By the Decision, the Board dismissed her appeal against the decision in the Notice.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that if returned to Indonesia, she will be harmed or even killed by a moneylender for being unable to repay her husband’s loan.

8.  The Applicant was born in Ngawi, Java, Indonesia. She is married but separated. Her parents had passed away and her sisters are now living in Indonesia. She had nine years of formal education and seven years’ working experience as a domestic helper in Taiwan and Hong Kong.

9.  She married her husband in 2008. Since she started working in Hong Kong in March 2009, she remitted $4,000 to her husband monthly. In June 2020, her husband borrowed two billion Indonesian rupiah from the moneylender in order to set up his business. She last transferred money to her husband in November 2020.

10.  On 25 December 2020, her husband told her that his business failed and the moneylender seized the collaterals for the loan, including the house and the farm that she had bought. Three hours later, she tried to call her husband for further details but could not reach him. She lost contact with him thereafter.

11.  On 30 December 2020, she received a call from the moneylender who confirmed that the deeds of her house and farm were in his possession and the proceeds of sale of those properties were not sufficient to settle the loan. He told her that the amount due under the loan had increased to five billion Indonesian rupiah, and she was responsible for her husband’s loan because he could not reach her husband anymore. He said he had a powerful network in Indonesia and would kill her once she returned to Indonesia.

12.  From December 2020 to February 2021, moneylender called her three times a week. He last threatened her in February 2021. The Applicant never paid any money to the moneylender. She never met him or his associates and had never been harmed by them.

13.  She does not believe the Indonesian police could protect her, as they are corrupt. She does not believe internal relocation viable because she does not have money to relocate and does not know other places in Indonesia where she could relocate to.

The finding of the Board

14.  The Applicant claimed she was threatened in December 2020. It was not until 20 April 2021 that she raised her claim for protection. The Board considered the long delay in lodging her claim cast serious doubts on its veracity of her claim.

15.  The Board spotted significant inconsistencies in her evidence regarding the threats. In her NCF, she said that the moneylender threatened her three times a week from December 2020 to February 2021 and that no one in her family reported the threat to the police. However, at the hearing, she told the Board that the moneylender had called her only three times and the last call was in December 2020. She said her sister had reported the incident to the police, but she could not recalled when that happened.

16.  The Board also noted serious contradictions in her evidence about when the loan was made. For instance, she said in her NCF that the loan was obtained in June 2020, but at the hearing, she said it was obtained in 2019 and the moneylender chased her sister for repayment in March 2020.

17.  The Board found the number and nature of inconsistencies and implausibilities in her evidence undermined its reliability. It found the Applicant dishonest and unreliable. It was not convinced that she overstayed in Hong Kong because of the alleged threat or harm by the moneylender. Even if the moneylender did exist, the Board was not convinced that he would or could locate the Applicant or harm her or that the ill-treatment would attain the minimum level of severity as to support a torture claim. It considered her alleged fears were based on far-fetched speculations.

18.  Though the country of origin information (“COI”) indicated that there are police failures and corruption in Indonesia, there are also objective indications that the Indonesian government has taken practical steps to maintain public order and safety in its jurisdiction, to improve the effectiveness and to monitor the conduct of the police. The Board was satisfied that adequate state protection is available. It also found as an able-bodied person, the Applicant could safely relocate to other places in Indonesia to avoid the perceived risks from the moneylender, which were only localised within her home area.

19.  For Persecution Risk ground, the Board found that the moneylender was not a state actor for the purpose of considering persecution risk. It found that the Applicant’s dispute with the moneylender 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 as to entitle her to protection under this ground. In any event, state protection would be available to avoid the risk of harm.

20.  For BOR 2 Risk ground, the Board found that there was nothing to suggest that the Applicant would be deprived of her life by the Indonesian government or that her life would be threatened by a risk targeting her personally.

21.  For BOR 3 Risk ground, the Board did not accept that the Applicant had suffered injury of the requisite level of severity as to qualify as torture, cruel, inhuman, degrading treatment or punishment as to suggest she would be at such risk of such harm if refouled.

22.  For Torture Risk ground, the Board found that there was no involvement by any public official or person acting in an official capacity in the alleged ill-treatment of the Applicant. It was also not her case that there was any acquiescence by the state in inflicting the ill-treatment on her nor was there evidence of a consistent pattern of gross, flagrant or mass violation of human rights in Indonesia. It found the claimed ill-treatment did not meet the definition of “torture” under section 37U(1) of the Immigration Ordinance as to entitle her to protection.

23.  Applying the law applicable to non-refoulement protection to the above findings, the Board found the Applicant was not entitled to protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal and affirmed the decision in the Director’s Notice.

Legal principles applicable to judicial review

24.  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[7].

Grounds of judicial review

25.  The Applicant advanced the following grounds of judicial review in her Form 86:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weightage to the presence of state acquiescence and that she was tortured at the behest of state law enforcement agency;

(3)  the Board acted unreasonably and unfairly by placing too much reliance on the COI but failed to take into account the Applicant’s personal background;

(4)  the Board acted improperly and unfairly when assessing whether to accept her explanations and unreasonably required her to response to questions which she could not respond;

(5)  the Board failed to take into account the nexus of political parties and official corruption making persecution effectively persecution by the state;

(6)  the Director failed to take such argument into account or give sufficient weight to such argument before reaching the decisions; and

(7)  the Board should have allowed the appeal.

26.  In her written submission dated 9 August 2024, the Applicant advanced a number of additional grounds of unfairness and breaches of the high standard of fairness arising from lack of language and legal assistance.

27.  In her written submission dated 27 August 2024, she renewed her complaint for lack of legal and language assistance. She also made general and unparticularised allegations of procedural unfairness and irrationality, such as that the Board fettered its discretion by refusing her appeal to achieve a quick disposal.

28.  These grounds and submissions are very familiar to the Court as it has seen similar or even identical grounds and submissions in other applications. The particulars appear like a template submission without regard to the actual facts of the case. For example, state acquiescence, torture at the behest of state law enforcement agencies and pressure from political parties, etc never featured in the Applicant’s evidence.

29.  At the hearing, the Court explained the principles mentioned in the preceding section to the Applicant. She said she understood the principles and would leave the issue of error of law to the Court’s scrutiny. Then, the Court attempted to explore the grounds with her focusing on procedural unfairness and irrationality in the Decision. She confirmed that the grounds and submissions were prepared by her friend on the basis of what she had told him. Though she said she understood what was written in the documents and could explain them, she actually could not. Eventually, after repeated explanation of the legal principles, she said she felt everything is transparent and had nothing else to say.

30.  Despite that, the Court took her through her latest written submission dated 27 August 2024, which basically repeated her earlier submission dated 9 August 2024. The thrust in those submissions is procedural unfairness due to the absence of a proper and fair mechanism to enable unrepresented litigants to understand more about their claims, the absence of proper legal and language assistance in the processing of her claim and that the Decision had never been read back to her in her own language. However, when exploring her submissions with her, she unequivocally admitted that she had language assistance in preparing her NCF, in attending the screening interview and in all the proceedings before the Director and the Board. She also admitted she had legal consultation in preparing her NCF, in attending the screening interview, though not in the appeal before the Board.

31.  In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance. The Applicant had the benefit of legal assistance in the form of legal consultation, in completing her NCF and had the benefit of legal representation in presenting her case to the Director at the screening interview. All the benefits that legal representation could have afforded her were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

32.  As for her complaint about lack of language assistance in understanding the Decision, it has no bearing on the Decision. The Decision was made when it was issued. Whether it was read back to her in her own language could not change the Decision. The absence of translation or interpretation could not raise any issue of procedural unfairness. Furthermore, annexed to the Decision is a note in thirteen usual languages used in Hong Kong, including Indonesian, informing the recipient that she may telephone the secretariat of the Board for assistance.

33.  The Applicant was unable to give any particulars of her complaint about irrationality. The Court will bear this issue in mind in its overall anxious scrutiny of the Decision.

Overall scrutiny

34.  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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected almost the entirety of her case. This is a finding fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm 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 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.

Conclusion

35.  For the above reasons, this leave application has no prospect of success. Accordingly, the leave application 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