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

HCAL 1554/2019

[2023] HKCFI 3064

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1554 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 refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 6 June 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 15 May 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 September 2018 (the “Notice”). 

2.  The Applicant had not requested an oral hearing.  Having considered the nature of the application, the issues raised, the Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing.  

3.  The Applicant is an Indonesian national, now aged 42.   She came to Hong Kong to work as a foreign domestic helper.  Her contract of employment was prematurely terminated and she became an over-stayer since 30 September 2011.  She was arrested on 9 December 2011.  She made a claim for protection under Part VIIC under the Immigration Ordinance (the “Torture Claim”).  Her claim was refused by the Director of Immigration (the “Director”).  Her appeal against the Director’s decision was refused by a differently constituted Board on 12 April 2013.  On 24 March 2014, she raised a non-refoulement claim.  In due course, her non-refoulement claim was assessed under the three remaining applicable grounds under the Unified Screening Mechanism (the “USM”), namely: BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. 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 her previous Torture Claim application, the supplemental claim form (“SCF”) prepared by her with legal assistance and the record of her screening interviews in the presence of her lawyer.   In gist, she claims, if refouled to Indonesia, she would be harmed or killed by a man called Iman (“Iman”) for refusing to marry him to settle a debt owed to him by her father.

5.  The Applicant was born in Blitar, Indonesia.  She is a Muslim.  She completed nine years of formal education and has approximately nine years of working experience, including working as a foreign domestic helper in Taiwan and Hong Kong.  She first came to work in Hong Kong in April 2010.

6.  In October 2010, her father told her that he had borrowed 25,000,000 Indonesian rupiah (“IDR”) (equivalent to HK$25,000) from Iman who lived in the same region as her family and asked for her assistance to repay the debt.  Between December 2010 and June 2011, the Applicant remitted three sums of HK$ 2,000 to her father to help repay the loan.  She could not make further remittances when her employment was terminated. 

7.  In March 2012, the Applicant’s father informed her about Iman’s proposal that she marry him to settle the outstanding debt owed to him by her father.  Iman is married.  The Applicant refused.  As a result, Iman demanded immediate repayment of the loan. Her father called her three times to urge her to accept the marriage proposal.  She learnt that Iman routinely visited the Applicant’s home to inquire about the overdue loan, though no harm was ever caused to the family.  In her last contact with her parents, the Applicant was told that her father had been repaying monthly interest to Iman and whenever Iman came to collect the interest, he would ask for the Applicant’s whereabouts.  

8.  The Applicant did not want to return to Indonesia because she did not want to marry Iman and feared that he would torture her if she refused his marriage proposal.  Though Iman had not expressly threatened to torture the Applicant, she was worried that he could ask the police to act violently towards her to force her to marry him. She did not think the police will help her and she could not afford to bribe the police or to relocate within Indonesia.

9.  She was also concerned that Mr. Iman would be able to bribe the police in her area and that state protection would not be available.  She did not know how to seek help from government and non-governmental organisations such as Corruption Eradication Commission, Office of the National Ombudsman, National Commission on Violence against Women (Komnas Perempuan), and National Commission of Human Rights (Komnas HAM) or Rifka Annisa.  She thought internal relocation would not be feasible due to lack of financial resources and peer support and her belief that Mr Iman would be able to successfully locate her.

The finding of the Board

10.  The Board accepted the Applicant’s account as consistent and assessed her claim on the basis of the case as she asserted.  The Applicant had not experienced any physical violence or direct threats from Iman, nor had her father tried to persuade her to marry Iman using threats.  As such, the Board determined that her fear of harm if she returned to Indonesia was based on mere speculation, unsupported by any evidence.  While accepting that there are problems about corruption and violence against women in Indonesia, the Board found on the basis of authoritative and credible country of origin information that the government has taken steps towards improving and monitoring the conduct of public officers and providing protection for female victims of violence.  It found state protection would be accessible upon the Applicant’s return to Indonesia if required.  The Board therefore concluded that she had failed to show, even to the low standard required, that she would faces any real and substantial risk of being subjected to the proscribed harm if she is returned to Indonesia. Hence, it refused her claim to protection under BOR 3 Risk ground.

11.  The Board found the Applicant’s case does not fall within the definition of persecution under Persecution Risk ground, as her feared ill-treatment was not on account of any of the Convention reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie race, religion, nationality, membership of a particular social group or political opinion.  It also rejected her argument that “being female in a conservative Muslim country makes [her] part of a persecuted social group”, because on her own account, she had never been subjected to misconduct or ill-treatment which would remotely constitute persecution.  Hence, it refused her claim based on Persecution Risk ground.

12.  The Board also dismissed het BOR 2 Risk claim due to lack of evidence of risk of harm to her life by the state. 

13.  Having regard to geographical size and population of Indonesia, the Board considered the chance of Iman locating the Applicant in Indonesia could be safely dismissed.  The Board also considered that being an able-bodied woman with nine years of formal education and work experience in Taiwan and Hong Kong, it would not be unduly hard for the Applicant to relocate internally in Indonesia.

14.  Applying the law applicable to non-refoulement protection to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the three remaining applicable grounds under the USM and dismissed her appeal against the Director’s Notice.

The legal principles applicable to judicial review

15.  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[4].  

Grounds for judicial review

16.  The Applicant did not put forward any grounds of application for judicial review in her Form 86.  In her supporting affirmation, she said she was directly affected by the Decision and annexed a copy of the Decision.  In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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. 

Discussion

17.  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 Persecution Risk, BOR 2 Risk and BOR 3 Risk grounds; 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 wholly on the basis of her case as she asserted.  It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so.  Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the three applicable grounds.  These are finding of facts and of law.  Insofar as it is a 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.  It was on that basis that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the remaining three applicable grounds.  This is a mixed question of fact and of law.  Insofar as it is a finding of fact, it is 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 it is finding of the law, it is absolutely correct.  The Court could detect no error of law 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

18.  For the above reasons, leave to apply for judicial review of the Board’s Decision 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

[1] 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”)

[2] 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

[3] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4] [2018] HKCA 524 at [14(1)]