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HCAL 1114/2023
[2025] HKCFI 625
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1114 of 2023
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Siti Nurjanah |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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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:
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 7 July 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 30 June 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 29 November 2022 (the “Notice”), refusing her application for non-refoulement protection.
Background
2. The Applicant is an Indonesian national. She last entered Hong Kong to work as a domestic helper in 2017. She overstayed since 26 December 2020 after her employment was prematurely terminated. She was arrested by the police on 15 June 2022. She was subsequently convicted and sentenced to 15 months’ imprisonment for taking up employment unlawfully. While in custody, she made a non-refoulement claim by way of written representations dated 18 July and 29 September 2022. 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 claim 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 (the “NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the Applicant claims that if returned to Indonesia, she will be harmed or killed by her husband because she did not remit him money and had an affair with another person.
4. The Applicant, now aged 31, was born in Central Java, Indonesia. She had received nine years’ formal education and had more than four years’ experience working as a domestic helper in Indonesia and Hong Kong. She is married with two children. Her parents, husband and children are living in Indonesia.
5. The Applicant married her husband in 2008 under a marriage arrangement by her parents. Her husband was a short-tempered farmer. Their family was always in financial trouble. When the family ran out of money, her husband assaulted her with bare hands three to four times a week. She did not report the assaults to the police, as she did not want to upset her parents.
6. In September 2017, the Applicant went to work in Hong Kong as a foreign domestic helper. She sent most of her income to her husband to support the family. In 2019, her husband found out she had an affair in Hong Kong. They had quarrels over the telephone during which he threatened to kill her if she returned to Indonesia. Her employment was terminated on 11 December 2020. Out of fear for her husband, she did not return to Indonesia and overstayed in Hong Kong.
7. In January 2021, her husband called and informed her that he had borrowed 200 million Indonesian Rupiah (“IDR”) to renovate the family house and that the loan need to be repaid within three years. He did not tell her the interest rate, but demanded her to remit five million IDR to him monthly to help him repay the loan, or he would kill her when she returned to Indonesia. She did not remit any money to him because she was out of employment. Her husband called her many times thereafter and renewed the threat. In April 2021, the Applicant remitted five million IDR to him. After that, she did not send him any more money as she had run out of funds. Her husband continued to call her to ask for money and uttered threats. In April 2022, she blocked his phone number because she could not tolerate him anymore. She never heard from him since.
8. She claimed that state protection was not available because the police in Indonesia is corrupt. She does not believe internal relocation viable, as she does not have family and friends in other parts of Indonesia.
The finding of the Board
9. The Board considered the Applicant’s case consistent and assessed her claim on the basis of her case as she asserted. However, from the low intensity of harm brought by the husband and the absence of any threat or harm to her own family, the Board found that her husband had no intention to trace her nationwide to harm her. There was also no evidence suggesting that her husband exhibited any intense and sustained effort to harm or kill her and/or her family members.
10. On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Indonesia. However, the same 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. Hence, the Board considered reasonable state protection would be readily available to the Applicant in Indonesia.
11. The Board did not accept her allegation that her husband being a farmer would be able to find her wherever she lived in Indonesia. It found as an able-bodied person, the Applicant can relocate to other parts of Indonesia to avoid the perceived risks from her husband, which are localised in her home area.
12. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced any 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 decision in the 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. At the first day of the hearing, after the above legal principles had been explained to her, she said she had no complaint about errors of law in the Decision and left it to the Court to examine the Decision for errors of law on her behalf. She confirmed she had no complaint about procedural unfairness and irrationality in the Decision.
15. Subsequently, the Court noticed that she had advanced some specific grounds of review in her supporting affirmation. The Court recalled the Applicant at an adjourned hearing to explore those specific grounds with her.
16. First, she stated that her enemy, meaning her husband, was a very powerful man in society, and he would bribe the police so that the police would listen to him and would not follow the law. The Board had considered the issue of corruption and effectiveness of the Indonesia police in paragraph 9 and 10 above. It studied the COI referred to in the Director’s Notice. The Director had considered 14 COIs relating to corruption, including 2021 Country Reports on Human Rights Practices: Indonesia published by the United States Department of State which fairly reported that corruption is endemic in Indonesia and the police are plagued with corruption. But it also reported recent government efforts in fighting corruption, the establishment of the Corruption Eradication Committee, its achievement in improving efficiency and effectiveness of law enforcement and reducing corruption in Indonesia through coordination, supervision, monitoring, prevention and action with the participation of all elements of the nation.The COI also reported news about arrests of high ranking officers. These COIs are from credible and authoritative sources. The Board’s conclusion about availability of state protection was based on a balanced consideration of the COIs. It is a finding of fact solely within the province of the Board which the Court will not interfere save for errors of law, procedural unfairness or irrationality in the Decision. This Court could not find any such vitiating elements in the Decision.
17. Second, the Applicant complained that the Board dismissed her case without considering her claim. She said the Board did not take time to consider her case and that her life is in danger. When it was shown to her that the Board heard the appeal on 14 June 2023 and delivered its Decision on 30 June 2023, she agreed that that was sufficient time for the Board to make a decision.
18. Third, she alleged that the Board did not accept the documents she submitted in her first language; did not give her time to translate her documents into English; and that the translator and interpreter were not helpful. However, when asked for particulars, she admitted the interpreter was indeed helpful and that her complaint was groundless.
Overall scrutiny
19. 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 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 applicable to non-refoulement protection 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 finding of facts which 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 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
20. For the above reasons, the leave application is refused.
Dated the 14th day of February 2025
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(Seline Sze)
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 his 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);
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 14/02/2025
Siti Nurjanah
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 14/02/2025
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21290
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1077/22 (Formerly RBCZ 5000939/22)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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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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