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HCAL 2312/2019
[2025] HKCFI 758
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2312 of 2019
BETWEEN
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Sri Mudah |
1st Applicant |
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Lau Young |
2nd Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
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:
1. Leave to amend the Form 86 be granted; and
2. Leave to apply for Judicial Review be refused.
Observations for the 1st and 2nd Applicants:
Introduction
1. This is the Applicants’ application by Form 86 filed on 12 August 2019 for leave to apply for judicial review (the “leave application”) of a decision dated 15 December 2017, 19 December 2018 and 30 May 2019. They named the “USM” as the proposed respondent and the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) as an interested party. They annexed a copy of the decision of the Board dated 30 May 2019 (the “Decision”) in their supporting affirmation. Reading the Decision, it became clear that the Applicants’ intention is to seek a judicial review of the Decision of the Board dismissing their respective appeals against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 December 2017 and 19 December 2018 (respectively the “2017 Notice” and “2018 Notice”, collectively the “Notices”), refusing their respective non-refoulement application. At the hearing the Applicants confirmed that this is indeed their intention. Hence, leave was granted to amend the leave application as above to give effect to their intention.
2. As the 2nd Applicant is a minor, the 1st Applicant representing her had been advised by letter from this Court on 14 November 2024 of the requirement under Order 80 rule 2 of the Rules of the High Court that she must seek legal representation for the 2nd Applicant so that his specific interest may be fairly put before the court. She had also been advised to seek legal representation from a private lawyer or from the Legal Aid Department. At the hearing she admitted having received the letter but confirmed that she will not seek private legal representation as she had no money to engage a private lawyer. She gave various excuses for not seeking legal aid from the Legal Aid Department, such as lack of language assistance and that the Legal Aid Department required her to provide too much information. She said she was confident to represent the 2nd Applicant.
3. Having considered, inter alia, the applicable law, the issues raised, that the Applicants had been legally represented before the Board, that no new evidence was advanced, and the 1st Applicant’s expressed intention not to seek legal representation for herself and the 2nd Applicant, the Court considered the lack of legal representation for the 2nd Applicant before the Board or this Court a mere irregularity. The Court proceeded to make the determination.
Background
4. The 1st Applicant is an Indonesian national. She last arrived in Hong Kong on 4 December 2005 to work as a foreign domestic helper. She overstayed since 7 September 2007 after her employment contract was terminated. On 10 April 2009, she gave birth to the 2nd Applicant, but the natural father of the 2nd Applicant had disappeared. On 24 April 2009, she surrendered to the Immigration Department. She gave birth to two other children on 18 December 2010 and 27 November 2011 with a Hong Kong resident whom she subsequently married. Both her other two children, have established the right of abode in Hong Kong, but the 2nd Applicant has not.
5. Then on 27 February 2017, the Applicants raised a non-refoulement claim by written signification. On 21 August 2017, they also submitted their dependent visa applications, which presumably were rejected. On 27 November 2017, they lodged their Non-refoulement Claim Form (“NCF”). In due course, their non-refoulement claims were 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]. Their claims were rejected by the Director’s Notice. Their appeal was dismissed by the Board’s Decision. They now seek leave to apply for judicial review of that Decision.
The 1st Applicant’s case
6. The following account of the 1st Applicant’s case is mainly based on the information in the torture claim form (the “TCF”) prepared by her with legal assistance and the record of her screening interview (the “ROI”) in the presence of her lawyer. In gist, she claims that if returned to Indonesia, she will be harmed or killed by two moneylenders (“Bambang” and “Santosa”), for not being able to repay the loans, inclusive of interest, borrowed by her elder brother, her parents and by herself.
7. The Applicant, now aged 44, was born in East Java, Indonesia. Her parents and eldest brother are deceased. She had received nine years’ formal education and had eleven years’ working experience as a domestic helper in Indonesia, Singapore, and Hong Kong. Prior to coming to Hong Kong, she has given birth to one daughter. Her three siblings and her eldest daughter are living in Indonesia.
8. The Applicant claimed that in early 1994, her eldest brother (“Miskan”) borrowed 300 million Indonesian Rupiah (“IDR”) from Bambang at a monthly interest of 4 million IDR (the “first loan”) to finance their the setting up of a business with his business partner, using the family house and her father’s farmland as collateral. About six months later, Miskan’s business partner absconded with a large sum of money from the business. Miskan was unable to pay the monthly interest. In mid-1995, her parents borrowed 300 million IDR from Santosa (the “second loan”) on the condition that the Applicant would go to work as a domestic helper in Singapore to repay the loan. Her parents used the money borrowed under second loan to pay off the first loan, but Bambang only returned the deed of the family house to them, as the interest remained outstanding.
9. From 1996 to October 1999, the Applicant remitted part of her salary to Miskan for repaying the loan. She learnt that the moneylenders went to her family house twice or thrice a week to demand repayments. If they could not collect money, they assaulted her parents and sister. When she returned to Indonesia, she discovered that Miskan had moved out of the family house in 1998 and had since then, used the money she remitted to him for his own purposes.
10. In March 2000, Santosa and his subordinates went to her family house to collect payment and forced them to leave the house by throwing the furniture at her and her family. She suffered injury on her thigh. She did not seek medical treatment, as she had no money. She self-treated her injuries at home. As the Applicant were unable to settle the second loan, Santosa eventually took possession of her family house. The Applicant, her parents and youngest brother then moved to live with a neighbour in the same village. In April or May 2000, Miskan returned home with his right leg amputated. He told her that as he could not repay the outstanding interest under the first loan, Bambang injured his right leg so seriously that it had to be amputated.
11. Between 2000 and 2003, the Applicant worked as a house maid in Indonesia to pay for her mother’s medical expenses. She could only spare part of her income to repay the second loan. During this period of time, the moneylenders and their subordinates went to her home to demand repayment almost every day. They assaulted her father and youngest brother if they could not pay.
12. While working in Hong Kong, she learnt that the moneylenders often went to her family home to demand payments and threatened to harm or kill her family members. Her youngest brother reported the incident to the police, but the police did not take any follow-up actions. Her mother was badly injured as a result of the assaults by the moneylenders, and subsequently died in 2005.
13. In December 2005, the Applicant returned to Indonesia for vacation. Since she had repaid a large part of the second loan, she managed to borrow 200 million IDR from Santosa (the “third loan”) at a monthly interest of 50% to cover her family’s previous outstanding loans. As a result, the total amount outstanding was around 545 million IDR in which 365 million IDR was owed to Santosa and 180 million was owed to Bambang. She then returned to Hong Kong to work, and remitted money to her youngest brother to repay the loans. She later found out that her youngest brother handed over the money to Miskan, who used it to pay off his other loans.
14. In 2008 and 2010 respectively, Miskan and the 1st Applicant’s father died as a result of injuries sustained in attacks by the moneylenders.
15. However, the Applicant had not encountered any problems from the moneylenders since 2010, as she had no contact with them. Her family told her that the moneylenders knew of the existence of the 2nd Applicant from the telephone conversation between her and her youngest brother. Santosa said if she could not settle the loan, it would be her son’s turn to repay upon their return to Indonesia.
16. The Applicant claimed that she could not access state protection because the police in Indonesia is corrupt and the loan dispute between her and the moneylenders was personal in nature. She does not believe internal relocation viable, as the moneylenders will be able to locate her and her son throughout Indonesia through their powerful network.
The 2nd Applicant’s case
17. The 2nd Applicant’s claim as advanced by the 1st Applicant was based exclusively on the same facts as the 1st Applicant’s. In gist, he asserted that if returned to Indonesia, he would be at risk of the proscribed harm from the moneylenders and their associates because the 1st Applicant was unable to settle the outstanding loans. Similarly, he claimed that state protection and internal relocation are not available.
The finding of the Board
18. The 1st Applicant testified before the Board. She adopted her evidence given in the NCF and ROI. Her testimony introduced new events into her claim, which she had not mentioned before. First, she said in her NCF and ROI that the moneylenders had assaulted Miskan only once prior to May 2000. However, she told the Board for the first time that the moneylenders had also beat Miskan in 2008 and as a result he died in hospital a few days later. When the Board asked for clarification, she changed her evidence and said that the beating which she told the Board earlier which broke Miskan’s right leg occurred in 2000, not in 2008. When the Board sought further clarification, she said also for the first time that she learned from her younger brother that in 2008 the moneylenders beat Miskan again and Miskan died a few days later. She could not explain why she had not previously disclosed this material information in her NCF filed much later in 2017.
19. Second, she testified that after she returned from Singapore in 2000, Miskan informed her that he had relocated to Kilimantan, but was located by Bambang who arranged to have him assaulted and broke his right leg. Her explanation for failing to inform the Director promptly was that she had forgotten about that event.
20. Third, she told the Board also for the first time that in 2000 she had reported Bambang’s assault on Miskan to the police, but except for visiting her and telling her that she would not be beaten if she paid off the loan, the police took no further action. She was unable to explain the reason for her failing to make prompt disclosure to the Director.
21. Fourth, she told the Board that she had lived in Surabaya in the past and Santosa had located her there, personally visited her and demanded she work abroad to repay the loans. Her explanation for not making prompt disclosure was that she had not been thinking at that time.
22. The Board found the 1st Applicant’s explanation of her failure to make prompt disclosure of these material events unsatisfactory and unconvincing. It drew adverse inference on the credibility and reliability of her claim, pursuant to section 37ZD(2)(f) of the Immigration Ordinance.
23. The Board found a number of material inconsistencies over time in her account of her claims concerning her past experience and those of her family members with the moneylenders as to whether she had reported the moneylender’s ill-treatment of Miskan in her NCF, ROI and even evidence before the Board. The Board came to the conclusion that neither she nor her younger brother had lodged any report about the moneylenders with the police.
24. The Board found the 1st Applicant’s evidence of her professed fear of returning to Indonesia consists of little more than a series of bald assertions, unsupported by any reliable objective evidence and subject to the multiple problems indicated above. Her claim is based substantially on hearsay evidence, including reporting on the moneylenders’ ill-treatment, the death of her mother in 2005 and her father in 2010 as a result of the assaults by the moneylenders, that her mother fell ill in 2003 as a result of the assaults and depression, that Miskan died in 2008 after beating by the moneylenders. Given the quality of her evidence, the Board was not prepared to attach any weight to such hearsay evidence.
25. Having regard to the totality of the evidence and its assessment of the 1st Applicant’s credibility and the reliability of the evidence, the Board made the following finding. First, neither the 1st Applicant nor any of her family members suffered any severe harm as a result of ill-treatment by the moneylenders. Second, the 1st Applicant never approached the police or any other state authorities in Indonesia for protection from the moneylenders. Third, the 1st Applicant was unharmed by the moneylenders when she returned to Indonesia for two weeks in December 2005 after her mother’s death and she was even able to secure a further loan from Santosa. Fourth, the disputes between the 1st Applicant and the moneylenders were purely personal disputes and there is no credible evidence that any public official or other person acting in an official capacity was involved, in the ill-treatment of the 1st Applicant and/or her family by the moneylenders whether actively or passively. Fifth, the 1st Applicant experienced no problems obtaining her Indonesia passports in 1996 and 2003 and exiting and re-entering Indonesia through official immigration channels using her Indonesian passport on multiple occasions since 1996. Sixth, there is no evidence that the Indonesian authorities have any adverse interest in the Applicants. Seventh, on the basis of authoritative and credible country of origin information, the Board found adequate state protection available to the Applicants and that they can also relocate to other areas in Indonesia to avoid the harm or risk of harm.
26. Applying the law applicable to non-refoulement proceedings, the Board found the Applicants failed to establish the factual basis to support their claim for non-refoulement protection. Hence, it dismissed their appeal against the decision of the Director in the Notices.
Legal principles applicable to judicial review
27. 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
28. The Applicants did not advance any grounds for judicial review in their Form 86 or the supporting affirmation. 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.
Overall scrutiny
29. 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 Applicants’ claim on the basis of their case as they asserted. The 1st Applicant has not advanced any separate claim specific to the 2nd Applicant or his personal circumstances. Though the Board did not discuss the case of the 2nd Applicant under a separate section, it is clear that it had given due consideration to his personal circumstances and his claims put forward before the Board. The Board did not reject his claims simply because it rejected the 1st Applicant’s claim. It was on the above basis that the Board found the Applicants’ feared ill-treatment is not well-founded. Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicants were not entitled to non-refoulement protection under any of the four applicable grounds under the USM. These are mixed finding of facts and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are finding of fact, they 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 or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
Conclusion
30. For the above reasons, the leave application is refused.
Dated the 27th day of February 2025
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( Seline Sze ) |
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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 the Applicant’s 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 27/02/2025
Sri Mudah
Lau Young
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 27/02/2025
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9698/17/12/365/I959
USM 9699/17/12/366/I960
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2977-8/17 (formerly RBCZ/11041-2/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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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