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

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

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 22 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 6 June 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration in his Notice of Decision refusing her claim for non-refoulement protection.

2.  By the time this leave application came to be processed, the Applicant had been removed and returned to her home country.  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.  Hence, the Court proceeded to determine this leave application on paper.

The Applicant’s claim

3.  The Applicant is an Indonesian national, now aged 41.  Her personal background, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  She first entered Hong Kong to work as a foreign domestic helper on 6 January 2012.  She returned to Indonesia on 16 April 2013.  On 1 August 2013, she re-entered Hong Kong to work as a foreign domestic helper.  Upon termination of her employment, she departed Hong Kong for Macau on 13 September 2013.  On 27 October 2013, she re-entered Hong Kong again for employment.  This time, she overstayed since 11 October 2015.  She was arrested for overstaying on 23 August 2018.  Then, she lodged a non-refoulement claim by way of written representation dated 28 August 2018.  In gist, she claims that she was compelled to repay the extensive debts owed by her family to Bambang.  If she returned to Indonesia and could not repay, she would be forced to marry Bambang and follow his Christian religion; and if she refused, she would be tortured.

The Board’s Decision

4.  After eleven pages of analysis of the Applicant’s evidence, the Board found there were multiple and cumulative significant aspects of the Applicant’s evidence which cast doubt on the truth of the central aspects of the Applicant’s claim[2]. Her evidence shifted and evolved in response to concerns and anomalies put to her by the Board.  The Board did not accept her explanation that the anomalies in her evidence was attributable to tension.  It was not satisfied that the Applicant had ever been pursued or threatened with forced marriage and/or forced religious conversion, harm or death from any person including Bambang, for any reason, or that she faces a real chance of being so pursued or harmed in any way in connection with that claim in Indonesia, should she return there.  It did not accept that the Applicant or any member of her family had an actual or perceived debt to Bambang which remains outstanding.  It did not accept on the evidence before the Board that the Applicant would face a real risk of harm in Indonesia for any of the reasons she advanced should she return to Indonesia.  It found the Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the Unified Screening Mechanism (“USM”).  Hence, it dismissed her appeal.

The legal principles applicable to judicial review

5.  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[3].

Grounds for judicial review

6.  The Applicant had not advanced any ground of review in her Form 86 or her supporting affirmation.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

7.  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 carefully and tested it against common sense and inherent probability.  It found the Applicant incredible and rejected her evidence.  Finding of a witness’ credibility is basically a finding of fact.  On that finding, the Board found the Applicant had failed to establish the factual basis to support her claim for 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 her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

8.  For the above reasons, the Applicant’s leave application 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