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

HCAL 818/2019

[2021] HKCFI 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 818 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.  The Applicant is an Indonesian national.  She first came to Hong Kong as a foreign domestic helper in 2007.  Her last contract of employment was prematurely terminated and she overstayed since 27 December 2010.  She applied for extension of stay.  When her application was refused, she absconded.  She surrendered to the Immigration Department on 11 March 2015 and sought non-refoulement protection claiming that she will be harmed or killed by her creditor if returned to Indonesia.  

2.  In due course, her non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 6 June 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected her claims.  On 19 June 2018, she lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice.  Her appeal was dismissed by the Board on 14 March 2019 (the “Decision”).  On 25 March 2019, she applied for leave to apply for judicial review against the Decision of the Board.

The Applicant’s case

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

4.  The Applicant said that towards the end of her employment contract in 2010, she signed a contract with a different employment agency in Hong Kong.  At the same time, she also signed a loan agreement for $25,000, but she did not actually receive the sum of $25,000 as $22,000 was paid to the employment agency for its fees and accommodation while she was waiting for her new employment to commence; and the balance was paid to the guarantor of the loan.  Her new employment never commenced.  The agency placed her in a boarding house in Wong Tai Sin.  Two debt collectors waited outside the boarding house and demanded repayment of the loan.  Her mother told her that three debt collectors went to her parents’ home in Indonesia to collect payment and threatened to kill the Applicant if she did not pay.  They told her mother that the loan outstanding had then increased to $53,000.

5.  She had tried between 2012 and 2015 to find the employment agency but it had gone bankrupt and closed down.  She did not report to the police.  She only informed the Immigration Department when she surrendered herself.  She also informed the Indonesian Consulate about the incident at about the time of her appeal.

6.  She has since lost contact with her parents.  She believes her parents sold their house to repay her loan.  Their house was worth $15,000.  She believes her debt collectors would still pursue her and harm or kill her if she returns to Indonesia.  She said she could not relocate anywhere in Indonesia because she has lost contact with her family and there would be no one to help her.

The finding of the Board

7.  The Board considered the Applicant had given a relatively consistent account concerning her employment in Hong Kong and the loan the employment agency required her to take out.  It basically accepted the Applicant’s evidence except for her fear and apprehension of risk of harm and proceeded to assess her claims on that basis. 

8.  Accepting her case that her parents had sold their house to repay her loan, the Board considered that the loan had in fact been satisfied.   Hence, the Board assessed the risk of harm which would befall on the Applicant should she return to Indonesia to be low.

9.  Furthermore, the Board found that the Applicant has not established her entitlement to protection under any of the four applicable grounds even on the basis of her case.  To establish Persecution Risk ground, one of the requirements which a claimant has to prove is a well-founded fear of being persecuted for one of the five reasons set out in the Convention Relating to the Status of Refugees, ie by reasons of race, religion, nationality, membership of a particular social group or political opinion.  The Board also identified other elements, but her failure to meet this requirement is necessarily fatal to her claim.

10.  To establish BOR 3 Risk ground, a claimant has to establish that the ill-treatment which he or she would face if expelled would attain what has been called “a minimum level of severity” and that he or she would face a genuine and substantial risk of being subjected to such mistreatment.  But, the Board was not satisfied that the Applicant has established that the ill-treatment the Applicant would suffer would attain that level of severity.

11.  For the same reason, the Board found that there were no substantial grounds for believing the Applicant to be in danger of being subjected to torture within the meaning of section 37U(1) of the Immigration Ordinance, which she must prove in order to succeed.

12.  Similarly, based on the findings, the Board was not satisfied that there is a real risk the Applicant will arbitrarily be deprived of her life.  Usually, the claimant has to show that the home state government is in breach of the obligation under the International Convention on Civil and Political Right to protect its citizens from arbitrary deprivation of life before this risk could be engaged.

13.  Having consulted credible Country of Origin Information (“COI”), including the Country Report on Human Rights Practices 2017 – Indonesia published by the US Department of State and DFAT Country Information Report: Indonesia published by the Australian Department of Foreign Affairs and Trade, the Board was of the view that though corruption remains very problematic in Indonesia and bribing of police is common, the government has taken steps to combat corruption and established anticorruption courts.  The Board did not accept that the situation in Indonesia was so dire that the Applicant would not be able to report any threats or incidents to the police and the police would not take action against the debt collectors.  The Board was satisfied that state protection of a reasonable standard is available.  If police assistance would not be forthcoming, the Applicant could relocate to another area within Indonesia to avoid the risk of harm.  Given the vastness of the country and its population, the Board considered the Applicant could relocate to populous cities such as Jakarta and Surabaya.  The Board also noted there are programmes run by organisations such as the Red Cross to give support to female domestic workers returning home and welfare assistance provided by government to assist poor families.  Even if the fear and risk were real, the Applicant could still prevent the risk by seeking state protection and avoid the risk by internal relocation.

Conclusion     

14.  The Applicant has not advanced any specific grounds in support of her application.  In her affirmation in support, she only pleaded to be allowed to stay in Hong Kong because she still has problem with the debt collectors and Hong Kong is more safe for her.  These are not valid grounds for challenging the decision of an administrative body.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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].

15.  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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds. The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review 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 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 para 14(1)