|
HCAL 585/2019
[2024] HKCFI 3346
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 585 of 2019
| BETWEEN |
|
|
|
Suprapti |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
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:
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 1 March 2019 seeking 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 25 February 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 March 2018 (the “Notice”).
2. The Applicant had requested an oral hearing. A hearing was scheduled and notice of hearing was sent to her by post. It has not been returned through the course of mail. She never informed the court of any change of address. There is nothing to suggest that she had not received the letter or had moved. However, she did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.
Background
3. The Applicant is an Indonesian national. She last entered Hong Kong on 3 October 2013 to work as a foreign domestic helper. She overstayed after her employment was prematurely terminated. She was arrested by the police on 3 April 2014 for overstaying and was subsequently referred to the Immigration Department. She then made a non-refoulement claim by way of written representation dated 21 September 2017. 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 was dismissed by the Board’s Decision. She now seeks leave to apply for judicial review of that Decision.
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 (the “NCF”) prepared by the Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, the Applicant claims, if returned to Indonesia, she will be harmed or killed by her husband and a debt collector for failing to repay her husband’s loan owed to the debt collector.
5. The Applicant, now aged 37, was born and raised in Betet, Pucangrejo, Sawahan, Madiun, East Java, Indonesia. She is married. Her two siblings are living in Indonesia. She had received nine years of formal education and had about four and half years’ experience working as a domestic helper in Singapore and Hong Kong.
6. While she was working in Hong Kong in 2009, her husband used her name as his guarantor to secure a loan of three hundred million Indonesian Rupiah (“IDR”) from the debt collector. She did not know if her husband had signed any loan agreement.
7. Three months after her arrival in Hong Kong in December 2009, the debt collector first called her and notified her of her husband’s default in repayment of the loan and her responsibility to repay as his guarantor. Hence, from December 2009 to February 2011, she repaid the debt collector a total sum of 80 million IDR. She stopped because she needed money to support her own living.
8. In February 2011, she returned to Indonesia for two weeks. During her stay, her husband asked her to repay the loan for him. He threatened to put her family at risk and she would not be able to return home, if she did not repay. Her parents told her that the debt collector had attended her house whilst she was out with her husband, and told them that she had to repay the loan. The debt collector also called her to demand repayment and threatened to take away everything from her if she did repay.
9. During her last telephone conversation with her husband towards the end of 2013, her husband told her that the debt collector and his associates had taken away his motorcycle and had him beaten up. He also told her that he had sold her parents’ house to repay his debt. Since then, she lost contact with her husband and her parents.
10. The Applicant does not believe the Indonesian authorities and police would help her, as they are corrupt. She does not believe internal relocation feasible because the debt collector could locate her throughout the country through their network and she does not have the financial resources to relocate.
The finding of the Board
11. The Applicant testified before the Board. The Board found numerous concerns about her evidence. She made new allegations of her husband’s violence to her and to her parents and his remarrying. She gave inconsistent evidence about when she lost contact with her parents and whether she had tried to locate them. She was unable to describe the threats from her husband. She had no knowledge about the alleged loan and the amount she repaid. She was unable to tell the Board how she made the repayments. She could not remember the name of the account holder to whose account she made repayments. She could not even remember the name of the bank to which she had made payments for two years. As these cumulatively significant concerns were not addressed or overcome by the Applicant, the Board could not be satisfied of the truth of the central aspects of the Applicant’s claim. Hence, the Board found she had failed to establish the factual basis in support of her claim to protection.
12. In addition, in answer to the Board’s question, she said she thought she could “probably” relocate in Jakarta or Surabaya. Hence, internal relocation is a feasible option to avoid the risk of harm.
13. For these reasons, the Board dismissed her appeal against the Director’s Notice.
Legal principles applicable to judicial review
14. 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
15. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she annexed a statement advancing five grounds of review. The statement is very familiar to the Court as it has seen similar statements or grounds in other applications. It appears to be a template submission made without regard to the actual facts of the case.
Ground (1) - Procedural impropriety: Failure to conduct sufficient due diligence
16. The particulars of this ground are as follows:
“ Failure to properly apply para 2 of the UN Committee against Torture General Comment No.2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, cf, the [Board] and the Director Decision which focused on whether such reliefs showed merely signs of positive improvement.”
17. On the face of it, this ground is directed at the Board’s failure to conduct sufficient enquiries on country of origin information (“COI”) before relying on it. However, the Decision shows that it was not reached on the basis of any COI at all. There is no merit in this ground.
Ground (2) - Procedural impropriety: Failure to conduct sufficient enquiry into the relevant COI
18. The Applicant gave no particulars in respect of this ground. She did not identify the COI which she alleged the Board had failed to conduct enquiries or had made insufficient enquiries. She also failed to attend court to perfect her ground. There is no merit in this ground.
Ground (3) - Procedural impropriety/Irrationality: Failure to give reasons for assessment of lack of BOR 3
19. The particulars of this ground are as follows:
“ Failure to reasons for assessment of Lack of BOR 3 risk and / or sufficient basis to support conclusion of lack of BOR 3 risk.”
20. The basis of the Board’s Decision is that the Applicant was not credible and failed to prove the factual basis in support of her claim for protection under any of the four grounds under the USM. The Board analysed the Applicant’s evidence in detail in paragraphs 19 to 49, which covered nine pages of the Decision. In paragraph 49, it concluded that it was not satisfied that any of the claims were true and did not accept that the Applicant faced or would face any risk of harm in connection with those claimed circumstances if returned to Indonesia. It then discussed the law about BOR 3 Risk and application of the law to the facts it found in the Applicant’s case in paragraphs 58 to 63, which covered two full pages of the Decision. Then, it concluded with the finding that applicant’s claim on the basis of BOR 3 is not substantiated.
21. The conclusion is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is solely within the realm of the Board which this Court will not intervene except for errors of law, procedural unfairness or irrationality in the Decision. This Court cannot find any such vitiating elements in the Decision. Insofar as it is one of law, it is absolutely correct. There is no substance in this ground.
Ground (4) - Error/Misdirection in law
22. The particulars of this ground are as follows:
“Failing to take into account the considerations of psychological strain and threats to me personally or threats to me directly to kill me.”
23. It is not the Applicant’s case that she suffered ill-treatment in the form of psychological strain. The Board had adequately considered the issue of threat. There is no substance in this ground. This ground is clear evidence of blind use of template without regard to the actual facts of the case.
Ground (5) – No sufficient basis to conclude that the Applicant would not be at risk of being subjected to torture and/or CIDTP
24. For the same reasons as given in paragraphs 20 and 21 above, there is no substance in this ground.
Overall scrutiny
25. 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 applicable to non-refoulement protection 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 analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. 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 Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, the Applicant’s leave application is refused.
Conclusion
26. For the above reasons, this leave application has no prospect of success. Accordingly, the leave application is refused.
Dated the 25th day of November 2024
| |
( 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 the Applicant’s solicitors must:
|
|
|
|
|
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)).
|
|
Sent to the Applicant
on 25/11/2024
Suprapti
Applicant’s ref. no:
Nil.
|
|
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 25/11/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10863/18/3/315/I1196
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 513/18 (Formerly RBCZ 2563/14)
Department of Justice,
Senior Assistant Law Office
(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)]
|