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

HCAL 422/2019

[2022] HKCFI 981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 419 OF 2019

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 (Order by the Honourable Mr Justice Johnny Chan):

The application

1.  The Applicant Siti Aminah applies for leave to apply for judicial review of the Decision dated 29 January 2019 of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board’s Decision”).

2.  This application is dealt with on paper as the Applicant did not request a hearing.

3.  Form 86 filed by the Applicant is amended to the effect that the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (the “Board”) is the proposed respondent and the Director of Immigration (“the Director”) is the interested party pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC.

The applicant

4.  The Applicant is an Indonesian national born in Indonesia on 24 June 1986.  She came to Hong Kong to work as a domestic worker since July 2010.  Her last employment contract was terminated prematurely on 24 May 2015 and she was permitted to stay in Hong Kong until 7 June 2015.  She did not depart and has overstayed in Hong Kong since 8 June 2015.  On 29 December 2016, the Applicant surrendered to the Immigration Department.  On 1 August 2017, she made a non-refoulement claim by way of written signification dated 1 August 2017.  On 4 January 2017, she was released on recognizance.

5.  It is the Applicant’s case that in around February 2012, she received a mobile phone SMS message from her elder bother Badrus Soleh from Indonesia saying that he had borrowed 200 million rupiah (around HK$130,000) from a man at home.  The Applicant’s brother asked her to repay the loan for him and if she refused to do so, she had to marry the lender, otherwise he (her brother) would kill her.

6.  It is the Applicant’s case that her brother was jobless and was a very bad tempered person.  She knew he would do what he said about harming or killing her as he would beat her up very hard and hurt her when she failed to do or follow his requests during the time they lived together at home with their mother.  The Applicant was very frightened by what her brother had said.

7.  The Applicant had no money to repay the loan for her brother and she did not know the man who loaned money to her brother.

8.  Though the Applicant was in Hong Kong, she was scared and did not know what to do. She did not dare to reply to her brother or answer his phone calls as she was afraid that he would chase after her for money to repay his loan and he would kill her if she reused.

9.  The Applicant dared not tell her mother her problem as the latter could not help and the Applicant did not want her mother to worry for her.  She did not report the matter to the police as she was in Hong Kong and she did not want to create any problem for her mother or worsen the situation for her mother any further.

10.  It is the case of the Applicant that she has nowhere to live in Indonesia and no one to support her back home, she would be killed by her brother upon her return to Indonesia if she did not repay the money that her brother borrowed from the loan shark, or alternatively marry the loan shark.

The Director’s Decision

11.  The Director considered and assessed the Applicant’s application on all applicable grounds, namely:

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

(b)     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

(c)     risk of torture or cruel, inhumane or degrading treatment or punishment (“CIDTP”) under Article 3 of the HKBOR (“BOR 3 risk”); and

(d)     Risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By Notice of Decision dated 24 May 2018, the Director refused the Applicant’s claim on the ground that the Applicant’s claim was not substantiated.  The Director found that there were no substantial grounds to believe that the claimed future risk of harm of the Applicant’s brother upon her return to Indonesia was real and foreseeable taking into account the low intensity and frequency of ill-treatment she had in the past [13]; that state protection would be available to the Applicant [14] and that internal relocation was an option open to her [19-21].

The Board’s Decision

13.  The Applicant appealed against the Director’s Decision.  She attended the appeal hearing on 23 November 2018.  The Board had before it the Hearing Bundle relating to the Applicant.  The Board had regard to the material referred to in it, including the Director’s Decision dated 24 May 2018, the Notice of Appeal/Petition filed by the Applicant containing her grounds of appeal, the Non-refoulement Claim Form (NCF), record of interview conducted with the Applicant by an immigration officer on 11 May 2018 and country information from a variety of sources.  The Appellant confirmed during the hearing before the Board that she had no further information that she wished to submit.

14.  The Board had considered the Applicant’s claims in her written evidence attached to her completed NCF, her record of interview before the Immigration Department, her Notice of Appeal/Petition and her oral evidence given at the hearing before the Board.

The Board’s Consideration of the Likelihood of the Applicant’s Feared Treatment would materialize

15.  The Board found the Applicant’s evidence generally about the loan her brother took from a loan shark to be very limited and vague.  The evidence of the Applicant as to the contents of the SMS message that she received from her brother, i.e. “I borrowed money from a loan shark.  If you do not repay I will kill you” or “I borrowed money.  If you do not repay you must marry.  If you do not marry I will kill you”, did not support the Applicant’s claim that the amount of money her brother allegedly borrowed was 200 million rupiah.  There was nothing in the Applicant’s evidence regarding the contents of her brother’s message to her about the amount of money he had borrowed and the Applicant had provided no explanation for her knowledge about the amount of the loan.

16.  The Board found the Applicant’s evidence as to whether her brother had called her after the SMS message inconsistent.

17.  The Board found the Applicant’s claim that she lost her mobile phone in February 2012 around one week after she received the SMS message from her brother to be somewhat opportune and it was only at the hearing before the Board that the Applicant raised for the first time that she had lost her phone.

18.  The Board also found it implausible that the Applicant would have ceased having any contact with her mother since February 2012, because of the alleged problem with her brother.

19.  The Board also noted that the Applicant’s evidence as to whether she had any extended family living in Indonesia to be contradictory.

20.  The Board noted that the Applicant had not reported her situation to the Indonesian authorities as she did not know if it would be helpful and she was afraid of creating any problem or worsen the situation for her mother at home.  Based on the COI considered by the Board, the Board found that there was no evidence in support of the Applicant’s assertion that a report to the authorities might create problem or worsen anything.  The Board found that state protection was available to the Applicant if she encountered problems upon return home and her perception was misguided. 

21.  The Board also found that internal relocation alternatives were available to the Applicant. The Board found that given the age, education level and overseas working experience of the Applicant, it would not be unduly harsh for her to relocate to other cities in Indonesia to sustain her living there and to avoid the risk of harm from the creditor and her brother upon her return to Indonesia.

The Board’s Consideration of Risk of the Applicant’s Absolute and Non-derogable Rights under the HKBOR

22.  The Board gave careful consideration to the relevant provision of BOR 3, bearing in mind the threshold for the 2 main requirements that the person who invokes the protection of BOR 3 risk: (a) the ill-treatment (physical and/or mental suffering) that the person would face if expelled to another country attains a minimum level of severity; and (b) the person faces a genuine and substantial risk of being subjected to such ill-treatment.  The threshold is very high, it generally involves actual bodily or intense physical or mental suffering.  On the basis of the materials and information the Applicant submitted and for the reasons given in the assessment on risk in the preceding paragraphs, the Board did not accept the Applicant would face a real and personal risk of being subjected to treatment allegedly inflicted by the creditor and her brother prohibited by BOR 3 on her return to Indonesia.

23.  The Board gave careful consideration to the relevant provisions of BOR 2.  On the basis of the materials and information the Applicant submitted and for the reasons given in the assessment on risk in the preceding paragraphs, the Board found that the case of the Applicant clearly does not engage the provisions of BOR 2 in relation to death sentence and genocide. 

24.  The Board also found that the Applicant failed to establish a personal and real risk of arbitrarily deprived of her life in violation of BOR 2 (1) upon her return to Indonesia.

The Board’s Consideration of the Persecution Risk

25.  On the question non-refoulement on the grounds of persecution risk, the Board found that the Applicant’s problem with her brother and the creditor, even if true, was purely a private loan dispute.  For the reasons given in the assessment on risk in the preceding paragraphs, the Board found that the risk of the feared ill-treatment by her brother and the creditor was not real and not foreseeable and the Board did not accept that the Applicant’s fear was well-founded.

The Board’s Consideration of Torture Risk

26.  The Board considered the definition of “torture” under the Ordinance. For the reasons given in the assessment on risk in the preceding paragraphs, the Board did not accept there were substantial grounds for believing that the Applicant would be subjected to torture by her brother or the creditor upon return to Indonesia.  The Board did not accept the verbal threat inflicted upon the Applicant by her brother amounted to “torture” as defined by section 37U(1) of the Ordinance.

27.  The Board noted also that the Applicant did not have any problem with the police or the Indonesian government.  Taking into account relevant country information ( “COI”) and the case asserted by the Applicant, the Board assessed and found that the Indonesian government was not involved in any way in the problem that the Applicant had with her brother and the creditor.  The Board also found that the Indonesian government would exercise due diligence to prevent, investigate and punish the wrongdoers.

28.  For the reasons given in paragraphs 12 to 36 of its Decision, the Board dismissed the appeal of the Applicant.

Application for Leave to Appeal for Judicial Review

29.  The Applicant filed a Form 86 on 14 February 2019 for leave to apply for judicial review of the Board’s Decision.

30.  The Applicant, in her affirmation in support of her application, complained that the Board erred to disregard her dangerous situation.

Discussion

31.  Whilst the appeal before the Board was a rehearing in nature, the role of this Court is supervisory in nature; it is the duty of this Court to ensure the Board complied with the public law requirements in coming to its Decision in the instant case. 

32.  For the facts found by the Director and the Board, this Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA and Nupur Mst v Director of Immigration [2018] HKCA 524.

33.  In Re: Kartini [2019] HKCA 1022, the Court of Appeal held that 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).  This 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. 

34.  Having subjected the Board’s Decision to rigorous examination and anxious scrutiny, this Court does not find any error of law or procedural unfairness in the Board’s Decision.  For the findings made by the Board, they are not unreasonable or irrational in terms of Wednesbury unreasonableness. All the matters taken into consideration by the Board are relevant to the Applicant’s claim for non-refoulement. Contrary to the Applicant’s complaint, the Board had considered her case carefully.

35.  It is the judgment of this Court that the Applicant does not have any valid ground to challenge the Board’s Decision.  The Applicant does not have any realistic prospect of success in her intended judicial review.

Conclusion

36.  I refuse to grant leave to the Applicant to apply for her intended judicial review.  I dismiss her application.

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