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HCAL 2461/2019
[2025] HKCFI 731
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2461 of 2019
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Meti Anggiya Lestari |
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 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:
1. Leave to amend the Form 86 be granted; and
2. 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 August 2019 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 1 August 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 November 2018 (the “Notice”), refusing her non-refoulement application. According to available documents, the Notice against which the Applicant appealed and which was considered by the Board is dated 17 January 2019 and not 29 November 2018 as asserted by the Applicant. Leave was therefore granted to amend the leave application in this respect.
Background
2. The Applicant is an Indonesian national. She last entered Hong Kong to work as a foreign domestic helper. After her employment was terminated, she overstayed since 8 August 2017. She was arrested by the police for overstaying on 21 May 2018. She made a non-refoulement claim by way of written representations in May to June 2018. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her application was rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for judicial review of that Decision.
The Applicant’s case
3. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her 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 killed by her mother because of her conversion from Muslim to Christianity and by her paternal uncle and paternal aunts because of her land dispute with them.
4. The Applicant, now aged 31, was born in Samarinda, East Kalimantan, Indonesia. She is single. She was brought up as a Muslim. She had received ten years’ formal education and had nine years’ experience working as a farmer in Indonesia and domestic helper in Hong Kong.
5. She was adopted and lived as a child of the family with her adopted father and mother (respectively, “father” and “mother”). Her mother went to work in Saudi Arabia when she was one year old. When she was eight, her father died and she inherited some land in Nganjuk, East Java, comprising of a rice field and a house. Her paternal uncle and aunt disputed her right to inheritance asserting that she had no right to the land as she is an adopted child.
6. Then, she moved to live with her maternal uncle and aunt for six years, until her mother returned from Saudi Arabia in 2006. She lived with her mother in Malang. Her mother re-married a year later. Her mother’s attitude towards her changed after the re-marriage. Her mother and her step father beat her. In 2015, she came to work as a foreign domestic helper in Hong Kong.
7. While in Hong Kong, through the influence of her Filipino friends and Indonesian friends, she was converted to Christianity in 2016. She told her mother about her conversion in mid-2017. Her mother responded that she would kill the Applicant if she ever returned to Indonesia because of her conversion. Her mother also removed her name from the family card. On the other hand, her paternal uncle’s and aunt’s fight for the land she inherited continued. They asked her to sign a document to transfer the land to them, but she refused. Then, they threatened to kill her if she returned to Indonesia. She last contacted her paternal uncle in February 2018. He renewed his threat to kill her if she did not transfer the land to him.
8. The Applicant claims that state protection is not available because the police would not intervene in her family dispute. She does not believe internal relocation viable, as she does not have the means to re-establish her life there.
The finding of the Board
9. The Applicant testified before the Board. The Board seemingly accepted most of her evidence relating to the land dispute, but doubted her evidence about her conversion. In respect of her fear arising from her paternal uncle’s threat, the Board found that she had never been harmed by her paternal uncle or paternal aunts. Apart from being asked to formally transfer the land to her paternal uncle, she suffered no adverse attention from them. The Board could discern no purpose which the alleged death threats would serve. Besides, the Applicant was able to avoid the threat by staying away from Nganjuk where the land is located and where her paternal uncle and paternal aunts are living. Hence, the Board concluded that the risk of harm from her paternal uncle and paternal aunts arising from the land dispute to be very low.
10. As for the threat from her mother, the Board had doubts concerning whether the Applicant is a practicing Christian and committed to the religion. Despite claiming that she attended church at least weekly in Hong Kong since 2016, she only displayed a most rudimentary knowledge of Christianity at the hearing. She demonstrated virtually no knowledge of the beliefs, rituals, significant holidays or texts of the religion. The Board thought it reasonable to expect that if she attended church with the regularity as claimed, she would have a deeper understanding and knowledge of Christianity. On this premise, the Board concluded that she had not embraced Christianity with a full inner conviction such that it formed a fundamental part of her identity. It was not convinced that she would continue to practice Christianity if she returned to Indonesia. On evidence, the Board found her immediate family, in particular her mother, were not devout Muslims. Hence, it concluded that it was highly unlikely they would harm or kill her because of her alleged conversion to Christianity.
11. On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Indonesia. However, the COI also suggested that there are objective indications that the Indonesian government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. On balance, it found reasonable state protection is available to the Applicant in Indonesia. Furthermore, as an able-bodied person, the Board considered she could relocate to other parts of Indonesia to avoid the perceived risks of harm from her paternal uncle and paternal aunt.
12. Hence, the Board found there could not possibly be any substantial grounds for finding that the Applicant would face a real risk of ill-treatment if refouled to Indonesia. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
13. 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
14. The Applicant advanced the following six grounds 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;
(3) the Board was unreasonable and unfair in placing too much reliance on COI but failed to take her personal background and experience into account;
(4) the Director failed to take such argument into account or to give enough weight to such argument before reaching the Decision;
(5) the Director failed to attain the high standard of fairness; and
(6) the Board was procedurally improper and/or unfair when assessing her explanations and asking questions that she was not in a position to respond.
15. Some of these grounds are directed at the Director, some at the Board and some at both. As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumed that all grounds are directed at the Board.
Ground (1): unfairness and unreasonableness
16. Except as particularized under the other grounds (which will be dealt with below), the Applicant’s complaints are vague, general and lacking in particulars. She did not attend the hearing and forewent the opportunity to provide particulars.
Ground (2): failure to give proper weight to the presence of state acquiescence
17. The Applicant complains about the Board’s failure to give proper weight to the presence of state acquiescence. However, state acquiescence was not an issue raised in the appeal. There is a total absence of evidence of influence by the state.
Ground (3): failure to give proper weight to COI supporting the Applicant’s case
18. The Board referred to the COI for the purpose of considering availability of state protection. The COI considered are all from authoritative and credible sources. Some are in support of the Applicant’s complaint about police deficiency and corruption, some are in support of the efforts of the Indonesian government in fighting corruption and enhancing effectiveness of the police. The conclusion reached by the Board is a finding of fact which is solely within the province of the Board which the Court in a judicial review will not interfere, save for errors of law, procedural unfairness or irrationality in the Decision. This Court cannot find any such vitiating elements.
Ground (4): failing to take such argument into account or to give enough weight to such argument; Ground (5): failing to attain the high standard of fairness and Ground (6): impropriety and/or unfairness in assessing whether to accept her explanations and requiring her to respond to questions that she was not in a position to respond
19. The Applicant gave no particulars of: (1) the argument which the Applicant alleged the Board failed to take into account or give enough weight to; (2) the particulars evidencing the Board’s failure in attaining the high standard of fairness; and (3) the particulars of the impropriety and unfairness alleged. By not attending the hearing, she forewent the opportunity of providing the particulars. In general, whether to take any fact into account and the weight to be attached to such facts taken into account are finding of facts solely for the Board. The Court could only leave this complaint to its overall scrutiny of the Decision.
Overall scrutiny
20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 Board assessed the Applicant’s claim on the basis of her factual case as she asserted. It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, the Board is absolutely correct. Insofar as these are finding of fact, 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. 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
21. For the above reasons, the leave application is refused.
Dated the 25th day of February 2025
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(Seline Sze) |
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for Registrar, High Court |
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 the Applicant’s 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 25/02/2025
Meti Anggiya Lestari
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 25/02/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 15457/19/1/330/I1628
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 4730/18 (Formerly RBCZ 10607/18)
Department of Justice,
Senior Assistant Law Officer
(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 23 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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