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HCAL 1418/2021
[2024] HKCFI 1413
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1418 of 2021
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BETWEEN
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Daryanti Ningsih |
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 |
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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 notice of application for leave to apply for Judicial Review (“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 11 October 2021 for leave to apply for judicial review (the “leave application”) of an unidentified decision made on “4-10-2021”. She named “USM” as the proposed respondent and “T.C.A.B.” as the proposed interested party.
2. Examination of the documents revealed that the Applicant is an Indonesian national. She last entered Hong Kong on 6 May 2018 to work as a foreign domestic helper. She was arrested by the Immigration Department on 31 July 2019 on suspicion of having committed immigration-related offences. She was convicted of those offences on 30 August 2019 and sentenced to four months’ imprisonment. On 18 October 2019, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed by the Director of Immigration (“Director”) on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice of Decision dated 25 March 2020 (the “Notice”) the Director rejected her claim. Her appeal against the decision of the Director in the Notice was dismissed by the Board’s Decision. She annexed a copy of that Decision in her affirmation in support of her leave application.
3. Pulling all these facts together, it is obviously the Applicant’s intention to seek judicial review of the Decision of the Board dated 4 October 2021 dismissing her appeal against the decision of the Director in his Notice dated 25 March 2020. At the hearing, she confirmed that in fact is her intention. Accordingly, leave is granted to amend her Form 86 as aforesaid to give effect to her intention.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed by a drug trafficker (the “trafficker”) upon her return to Indonesia because she is unable to repay the debts owed by her father and her sister (the “sister”) to the trafficker.
5. The Applicant, now aged 41, was born in Central Java, Indonesia. She received nine years of education. She worked as a foreign domestic helper in Malaysia from 2002 to 2011. She returned to Indonesia in 2011 for two months. Her sister who lived with her father in the family house told her that their father bought drugs from the trafficker and owed the trafficker a lot of money. The trafficker was notorious in her village for being a troublemaker and having a bad temper. Then, the Applicant came to work as a foreign domestic helper in Hong Kong.
6. In early 2012, the Applicant learned from her sister that their father was admitted to hospital and the trafficker started chasing her her for their father’s debt. The trafficker threatened to kidnap her sister’s children unless her sister paid back their father’s debt. The Applicant promised to help her sister with the repayment. She remitted money to her sister from time to time. After her father passed away, her sister borrowed 700,000 Indonesian Rupiahs (“IDR”) from the trafficker to cover the funeral expenses. Her sister was required to pay back the loan with interest amounting to IDR 2,000,000 within two months. The Applicant was only able to remit HKD 1,000 in total to her sister. Her sister told the Applicant that the trafficker went to her home frequently and threatened to take away her children. The Applicant advised her sister to move to another location. She last contacted her sister in 2013 when her sister told her that the trafficker knew she was working in Hong Kong. Since then, she lost contact with her sister.
7. On 14 February 2014, the Applicant went to Bali, Indonesia for seven days to attend a wedding. She did not know how to contact her sister. She did not return to her home in Indonesia and nothing eventful happened during this period.
8. In around April 2015, the Applicant received a call from an unknown person. That person told her that her sister had passed away and she had to return to Indonesia to handle her sister’s funeral. Thus, the Applicant flew back to Indonesia for three days after the call.
9. Not knowing where her sister lived, she returned to her home in Indonesia, where she saw a man who identified himself as the trafficker. That man gave her a number of documents, one of which was a letter bearing her father’s signature asserting that the Applicant would marry the trafficker to satisfy the debt of IDR 120 million (the “Letter”). The Applicant refused to marry the trafficker and demanded him to tell her where her sister was. The trafficker then beat her and slapped her. His ring scratched her face and injured her. He locked her inside a room. Later, the trafficker returned, beat her with a wooden stick, burnt her with cigarette butts and then raped her. After that, the trafficker told her that she had become his possession whether she signed the Letter or not. At last, the Applicant signed. Eventually, she escaped when the trafficker fell asleep.
10. The Applicant took refuge in the home of the parents of a friend in Jakarta whom she met in Hong Kong. She stayed there for a week and then moved to rented accommodation. With the help of another friend, she obtained another contract to work in Hong Kong. She changed her phone number in Hong Kong and did not have any contact with the trafficker since then.
11. The Applicant does not believe the Indonesian police would help her because she did not have money to pay them bribes or any concrete evidence against the trafficker. She also felt ashamed for being raped. She did not believe internal relocation would be feasible because the trafficker came from a powerful family and could locate her anywhere in Indonesia. She does not have any news about her sister. She said that the trafficker did not pursue her other siblings for the debt.
The finding of the Board
12. The Applicant gave evidence at the hearing before the Board. Her case is founded mostly on bare assertions and hearsay evidence without objective proof. The Board found her incredible for the reasons given in paragraph 69 – 76 of the Decision and rejected her evidence in its entirety. The major reasons are as follows.
13. First, the Applicant gave inconsistent reasons for returning to Indonesia in 2011. Initially, she claimed that she returned to take care of her father, but she admitted that her sister had been taking care of him. Then, she said she returned because her employment contract in Hong Kong had come to an end.
14. Second, though the loan to discharge her father’s funeral expenses was arranged by her sister, the Board found that it incredible that the Applicant did not know about the terms of the loan, not even the amount and the calculation of interest.
15. Third, the Board found it difficult to accept that while she was the person who advised her sister to move to another location to avoid the trafficker, she did not know where her sister had moved to and made no effort to locate her.
16. Fourth, the Board found it inherently improbable that she would have returned to Indonesia upon receiving the news of her sister’s death from an unknown person, not knowing where her sister had lived and without verifying the news before she went.
17. Fifth, the Board also found her evasive as to whether she had made any effort in contacting her family members.
18. In conclusion, the Board found the Applicant incredible and rejected her case in its entirety. It also found her bare assertion that the trafficker could locate her anywhere in Indonesia through his network lacking in detail, speculative and incredible. It found the Applicant had failed to show any real risk of ill-treatment or torture, if returned to Indonesia. For that reason, her claim failed on all applicable grounds under the USM. In addition, even if her evidence were accepted, in respect of Torture Risk ground, there is no evidence that the ill-treatment was administered by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as required by section 37U(1) of the Immigration Ordinance to entitle her to protection; and in respect of Persecution Risk ground, the risk was not on account of any of the reasons protected the 1951 Convention relating to the status of Refugees and its 1967 Protocol.
19. The Board also found further and in the alternative that the risks of harm from the trafficker is localised. It rejected the Applicant’s claim that the trafficker would be able to locate her anywhere in Indonesia as speculative. In fact, the trafficker was unable to locate her during the four months when she stayed in Jakarta. It found, given her background, it would not be unduly harsh for her to relocate to other cities, such as Jakarta, to avoid the trafficker.
20. For the above reasons, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM. Hence, it dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
21. 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
22. The Applicant did not advance any grounds for judicial review in the Form 86 or her supporting affirmation. She had been invited by the Court via its letter dated 25 March 2024 to advise the Court of her first language and contact number and to file submissions. She responded but did not file any submissions.
23. At the hearing, after the legal principles in the preceding section had been explained to her, she confirmed she had no complaint about errors of law, procedural unfairness or irrationality in the Decision. She only asked to be allowed to stay in Hong Kong as she had married a Hong Kong resident. That is a separate matter for the Director’s decision and not an applicable ground for seeking protection under the USM.
24. The essence of the Applicant’s complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to the Indonesia. That is not permissible in a judicial review.
25. In the absence of specific grounds of application, the Court in an application for judicial review 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
26. 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 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.
27. The Board found the Applicant’s evidence incredible and rejected her case in its entirety. Hence, she had failed to establish the factual basis in support of her claim for protection. As she bears the burden of proof, albeit on a low standard, this finding is necessarily fatal. It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. 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 not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, the application for leave to apply for judicial review is refused.
Conclusion
28. Leave to amend the notice of application for leave to apply for Judicial Review (Form 86) is granted, but the application for leave to apply for judicial review is refused.
Dated 23rd day of May 2024.
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(Allen LEE)
for Registrar, High Court
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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);
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 23/5/2024
Daryanti Ningsih
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 23/5/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17889/21/5/2/I1973
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 44/20 (Formerly RBCZ 10927/19)
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 33 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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