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

HCAL 66/2019

[2021] HKCFI 2054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 66 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 (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 28 December 2018 (the “Decision”). 

2.  The Applicant is an Indonesian national.  She entered Hong Kong lawfully to take up employment as a foreign domestic helper on 8 December 2005.  Her contract of employment was terminated on 25 February 2008 and she became an over-stayer since 11 March 2008.  On 8 March 2014, she was arrested by the police for possession of an identity card relating to another and sentenced to 12 months’ imprisonment.

3.  On 24 May 2013, she raised a non-refoulement claim asserting her fear that her life would be in danger posed by her mother’s loan collector, her husband and the Indonesian society because she has a Nepali boyfriend in Hong Kong, if she were to be returned to Indonesia.  Previously, she had made a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That claim was rejected by an immigration officer on 21 September 2011.  That decision was final.

4.  In due course, the Applicant’s non-refoulement claims were assessed only on the other three applicable grounds available under the Unified Screening Mechanism, namely: BOR 2 Risk[1]; BOR 3 Risk[2] and Persecution Risk[3] grounds.  By a Notice of Decision dated 13 February 2018, the immigration officer on behalf of the Director rejected her claims.  She appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board’s Decision dated 28 December 2018.  She now sought leave to apply for judicial review of the Decision of the Board. 

The Applicant’s case

5.  The following is an account of the Applicant’s case based mainly on the information in her non-refoulement claim form which was prepared by her with assistance of the Duty Lawyer Service. 

6.  The Applicant was married in 1999 and gave birth to a daughter in 2000.  Since the birth of their daughter, her husband became abusive and used to beat her from time to time.

7.  In 2001, the Applicant went to work as a foreign domestic helper in Singapore.  She returned to her matrimonial home in 2004 after completing her employment contract.  Nothing eventful happened after she returned.  She then went to work as a foreign domestic helper in Hong Kong in 2006.  Her contract of employment was terminated in early 2008.  She did not return to Indonesia and tried to look for new employment.

8.  In around 2008, her mother informed her that she had borrowed 10 million rupiah from a bank to meet family expenditure and education for her younger siblings.  Her mother said the loan collectors kept chasing her for the money.  She believed her mother was under threat and the collectors would probably threaten her when she returned to Indonesia.  She said that since she was out of work, she had a well-founded fear that she would be chased after, harmed or even imprisoned if she could not repay the loan for and on behalf of her mother.

9.  In 2013, she was told by her uncle that her husband had married another woman.  She cohabited with her Nepalese boyfriend who is a Buddhist.  She did not tell her parents because her boyfriend came from a different country with a different religious belief. She is worried that she would not be accepted by her family for those reasons. She thought she would face the consequence of expulsion from her family and from the Indonesian society.

The finding of the Board

10.  On her evidence, the Applicant had never been ill-treated by her husband.  She had only been abused by him for no reason and suffered some bruises.  Her husband remarried and had no interest in her.  She had never been threatened by her mother’s loan collectors.  Her mother never asked her to repay the loan for her.  It was only her belief that the collectors would probably threaten her upon her return to Indonesia.  It was also her own belief that she might be discriminated upon her return to Indonesia. The Board considered her feared harm is speculative and not genuine.  It found there is not an iota of evidence to show that she needed non-refoulement protection.  

11.  The Board nevertheless went on to assess her claims under the three applicable grounds assuming her fears were genuine.  However, it concluded that the Applicant’s did not meet the specific criteria under the three risks and that state protection and internal relocation are available to prevent or avoid the risks.

12.  At this hearing, the Applicant also admitted that she had no real fear from her ex-husband.

Grounds for judicial review

13.  In her supporting affirmation, the Applicant advanced the following specific grounds for her leave application:

(1)   Procedural impropriety – failure to apply para 2 of the UN Committee against Torture General Comment No. 2;

(2)   Procedural impropriety – failure to conduct sufficient inquiry into the relevant Country of Origin Information (“COI”);

(3)   Error/misdirection in law – failure to take into account the psychological strain and threats to the Applicant personally or the direct threats to kill her; and

(4)   No sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture, etc upon refoulement.

At the hearing, the Applicant was asked to expand and elaborate on these grounds.  She was unable to do so and apparently did not understand what the grounds were.  All that she could say was that she wanted to stay in Hong Kong.  Obviously, these grounds were prepared by someone for and on her behalf.

Ground (1) – Procedural impropriety – failure to apply para 2 of the UN Committee against Torture General Comment No. 2

14.  The Applicant stated under this ground that “the state’s obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event.”  However, the Director and the Board failed to observe this standard as they only “focused on whether such reliefs showed merely signs of positive improvement.”

15.  This ground is probably directed at paragraphs 26 to 28 of the Decision. In paragraph 26, the Board referred to Country Reports on Human Rights Practices for 2016 published by the United States Department of States which reported police inaction, corruption, abuse of power and violence against women.  It also referred to the Indonesia 2013 Crime and Safety Report published by the United States Department of States commenting on the incapability of the Indonesian police.  The Board referred to these adverse and negative comments as evidence in support of the Applicant’s fear that the police would not be able to give her the protection she need. 

16.  In paragraph 27, the Board referred to other positive COI from the same source about the government’s efforts in combating police and official corruption, including the setting up of the Corruption Eradication Commission, the TNI Specific Economics Crime Unit, the National Ombudsman Commission and the Deputy Attorney General Office with special jurisdiction over investigating and prosecuting corruption case.  Then the Board referred to newspaper reports about the vision of the new Ombudsman.  It referred to 116 complaints relating to litigation favours resulting in the Ombudsman Commission and Judicial Commission recommending sanctions for eight district judges.  The positive COI indicates that structural reforms had been introduced.  The information also suggests that the government’s effort in combating corruption yielded positive results.  The Board then concluded in paragraph 28 that state protection is available.  The Board had referred to conflicting information in the COI.  It must have done some balancing exercise before reaching the above conclusion.  The conclusion is a finding of fact exclusively within the province of the Board as the tribunal of fact.  This finding cannot be treated as evidence of procedural impropriety.

Ground (2) Procedural impropriety – failure to conduct sufficient inquiry into the relevant COI

17.  The COI referred to by the Director and the Board are from respected and credible sources, including the Country Reports on Human Rights Practices for 2016, Indonesia 2013 Crime and Safety Report and Indonesia 2014 International Religious Freedom Report published by the United States State Department; The World Factbook (updated on 23 January 2018) published bythe Central Intelligence Agency of the United States;the Amnesty International Report 2015/16 published by Amnesty International; Country Summary Indonesia January 2015 published by Human Rights Watch; and credible newspapers such as The Jakarta Globe and The Jakarta Post.  On the face and in the absence of evidence of obvious deficiency, the Board could not be criticized as having failed in its duty to conduct sufficient inquiry into the relevant COI.

18.  The Applicant was unable to particularize how the Board has failed, what sources it could have inquired from and what information would the Board have found had it conducted sufficient inquiry.  Her complaint is just a bare assertion.

Ground (3) Error/misdirection in law – failure to take into account the psychological strain and threats to the Applicant personally or the direct threats to kill her

19.  The Applicant could not identify the alleged error or misdirection in law.  She confirmed at the hearing that she had made no complaint to the immigration officer about psychological ill-treatment.  The Board had considered the strain and threats she had allegedly been subjected to and found that they were no more than her own surmise and speculation.  There is no substance in this ground.

Ground (4) No sufficient basis to conclude that the Applicant would not be at risk

20.  This is plainly an appeal against the Board’s finding of fact.  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].

21.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the three remaining applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks.   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, unreasonableness and irrationality.  There were no such elements in the Decision.  The Decision was utterly without fault. 

Conclusion

22.  For the above reasons, the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review was 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[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 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  [2018] HKCA 524 at [14(1)]