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

HCAL 1692/2023

[2024] HKCFI 2388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1692 of 2023

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 be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Yuyun Wahyuni (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 12 September 2023 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 January 2023 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is an Indonesian. She was born on 23 May 1992.

3.  She was born in Jawa Barat, Indonesia. She received 6 years of education and had 3 years of work experience. She worked as a foreign domestic helper in Taiwan between 2015 and 2018 before she came to Hong Kong in 2022 to work as a foreign domestic helper.

The Claim

4.  The Applicant relied on the following facts for her claim. Her father took out a loan (“Loan”) from a moneylender (“Creditor”) in September 2020 to start a duck farm. The principal of the Loan was IDR 50 million and the monthly interest was IDR 1 million.

5.  Her father lost money in the duck business and later suffered a stroke in early 2021. In August 2021, the Applicant’s aunt Charmi (“Charmi”) agreed to take on the liability to pay interest of the Loan. By then, the principal plus interest had accrued to IDR 60 million. Charmi stopped making the interest payments at some point in time unknown to the Applicant and the Applicant did not know how much was owed to the Creditor.

6.  The Applicant’s father passed away in January 2022. In February 2022, the Creditor came to her home to demand repayment from her mother. Her mother gave the Applicant’s phone number in Hong Kong to the Creditor.

7.  The Creditor called the Applicant and threatened to take away her home in Indonesia and kill her unless she paid back the Loan. In early December 2022, her brother-in-law (who was living in the same neighbourhood as her mother) informed her that the Creditor went to his home with armed men to collect the Loan. The Creditor threatened to take away his home as collateral and he was pushed by the Creditor during this incident.

8.  The Creditor and her underlings had visited the Applicant’s family 7 times. They violently kicked the front door of her family home and vandalized her family home once.

9.  In early December 2022, her aunt Ijah (“Ijah”) reported the Creditor to the police but the police at the Cilamaya Police Station told Ijah that they were in no position to make a report because they were the ones who owed money.

10.  The Applicant claimed that she would be ill-treated or even killed by the Creditor due to dispute on the Loan upon her return to Indonesia.

Procedural history

11.  The Applicant arrived in Hong Kong on 26 February 2022. She was permitted to remain in Hong Kong as a foreign domestic helper until 26 February 2024 or 14 days after termination of her employment, whichever the earlier. Her employment was terminated prematurely on 26 March 2022 and she was permitted to stay in Hong Kong until 9 April 2022.

12.  The Applicant did not leave by 9 April 2022 and overstayed in Hong Kong until intercepted by the police on 17 August 2022. On 18 August 2022, she was referred to the Immigration Department for investigation. By written significations dated 24 November 2022 and 7 December 2022, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (the “Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (the “BOR”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

14.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 20 September 2023, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant named the Board as the proposed respondent as well as the interested party in the Form 86.

16.  The Applicant filed her supporting affirmation on 20 September 2023 (the “Supporting Affirmation”).

17.  On 5 July 2024, the Applicant filed another affirmation applying to cancel all her non-refoulement claims including this intended judicial review application (the “Withdrawal Application”).

The DOI Decision

18.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that there would be any real and substantial risk of the Applicant being harmed or killed by the Creditor upon her return to Indonesia.

19.  The Director noted that according to the Applicant, the Creditor visited her mother 7 times but did not harm her mother. It was only in the third visit that the Creditor vandalised her home ([6.18] of the DOI Decision). Her brother-in-law was pushed by the Creditor in one incident but he was not injured ([6.17] of the DOI Decision). There was no evidence to suggest that any of the Applicant’s family members had been physically harmed by the Creditor. There was no reason to suspect that the Applicant would be treated differently and be harmed by the Creditor.

20.  On the issue of state protection, the Director, after considering relevant country of origin information, found that there might be some problems with competence or corruption within the Indonesian police but there were objective indications that the Indonesian authorities took steps to improve the police force. The Director found that the Indonesian government was able and willing to protect the rights of its citizens.

21.  Although the Applicant claimed that Ijah did not get any police assistance despite going to a police station to make a report, the Director found that the action by an individual police officer did not necessarily reflect the Indonesian police as a whole. Ijah did not report to a higher rank police officer nor seek assistance from other police stations. There was insufficient information to find that the Indonesian police would be unwilling or incapable of providing reasonably sufficient protection to the Applicant and there were other organizations in Indonesia from which the Applicant might seek protection.

22.  The Director further found that internal relocation would be viable. If the Applicant moved to Surabaya or Bali, the Creditor would have great difficulty in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

23.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

24.  The Board after considering the Applicant’s claims, including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at hearing before the Board, formed the view that the Applicant was not a witness of truth.

25.  The Applicant gave a markedly different story about the Loan in her testimony to the Board, which differed significantly from her case before the Director. When the Board highlighted the discrepancies for her, she changed her story again.

26.  These discrepancies covered the material aspects of her claim, such as how her parents spent the money from the Loan, the due date for the Loan and her contact with the Creditor while she was in Hong Kong. The Board identified many discrepancies and it is not necessary to repeat all of them here. (See [31]–[66] of the Board’s Decision)

27.  The Board held at [64] of the Board’s Decision that while many of the concerns over the quality of her evidence were not detrimental to her case when examined alone, the cumulative effect of these concerns created significant doubt over her reliability and credibility. The Board rejected her claim in its entirety and did not accept that her family owed money to the Creditor or that she faced any real risk of harm upon her return. The Board was not satisfied that the Applicant faced a real chance of serious harm, torture or death anywhere in Indonesia in the reasonably foreseeable future for any of the reasons claimed by the Applicant.

28.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

29.  In a judicial review, the court does not step into the shoes of the decision makers.

30.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board”.

31.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

32.  The Applicant did not advance any grounds for her intended judicial review in the Form 86 or the Supporting Affirmation. She only stated in the Supporting Affirmation that: “I don’t want to go back Indonesia, because my life very danger, because of my loan shark will kill me, because I can’t pay the debt. I don’t have money to pay the debt. Please save my life. Please give me live in Hong Kong because only in Hong Kong, I feel safety.” The Applicant produced the Board’s Decision as exhibit to the Supporting Affirmation without other supporting documents.

33.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am 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 very high standards of fairness.

35.  The Board found that multiple and cumulatively significant aspects of her claims and evidence seemed problematic, with several areas of her evidence appearing to evolve, without explanation, as the Board’s concerns were presented to the Applicant. The Board was not satisfied of the truth of her claim that she or any member of her family owed a large debt to the Creditor as claimed, and/or that she had been threatened with harm by the Creditor or anyone else in connection with the claimed debt, and/or that she faced a real chance of harm of any nature from the Creditor or anyone else in relation to any such debt in Indonesia in the reasonably foreseeable future.

36.  It was on such 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 under the USM. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

37.  The Applicant subsequently filed the Withdrawal Application on 5 July 2024 stating that she wanted to cancel all her non-refoulement claims including appeal/judicial review in Hong Kong.

38.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

39.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

40.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“ The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

41.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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