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

HCAL 2293/2019

[2022] HKCFI 2035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2293 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;

1.      The application to withdraw the application for leave to apply for Judicial Review be refused; and

2.      Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  There are two applications before the Court: (1) the Applicant’s application by Form 86 for 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 26 July 20219 (the “Decision”); and (2) her application by way of affirmation filed on 19 April 2022 to withdraw that application (the “Withdrawal Application”).  

2.  The Applicant last arrived in Hong Kong on the strength of her Indonesian passport on 26 May 2014.  She became an over-stayer after her employment was prematurely terminated.  She was arrested by the police for overstaying on 18 April 2015.  Then she lodged her claim for non-refoulement protection.  Her claim was assessed on all four applicable grounds available under the USM, namely, Torture Risk[1]; BOR 3 Risk[2]; BOR 2 Risk[3] and Persecution Risk[4] grounds.  By his notice of decision dated 5 December 2018 (the “Notice”), the Director rejected her claims.  The Applicant appealed to the Board.  Her appeal was dismissed by the Board’s Decision.  This is the decision in respect of which the Applicant sought a judicial review under the Leave Application.

3.  Then, on 19 April 2022, the Applicant applied by way of affirmation to withdraw her Leave Application. The reasons stated in her affirmation are:

“I want to cancel my case, because I want to go back Indonesia.”

4.  That is only a statement of her intention to “cancel her case” and to return to Indonesia, but is equivocal as to the underlying reason for withdrawing the Leave Application in light of her alleged fears, risks and claims for protection, her appeal against the Notice and her application for leave to apply for judicial review of the Decision.  To ensure that her decision to withdraw was an informed decision made voluntarily and not as a result of threat, duress or other inappropriate reasons and that she will be safe if returned to her home country, the Court gave her direction by letter dated 27 April 2022 to file an affirmation or a statement setting out her grounds for withdrawing her Leave Application, stating in particular:

(i)    how were her fears from her stepfather and the moneylender resolved;

(ii)   whether she still anticipates any real chance that she will be harmed or otherwise ill-treated by her stepfather and the moneylender, if refouled to Indonesia; and

(iii)  that she understands that if her application for withdrawal is granted, the decision of the Board is final. 

She was also informed that the Withdrawal Application as well as her Leave Application, if the Withdrawal Application is refused, will be determined on paper after 14 days from the date of these directions, regardless whether the above directions have been complied with. 

5.  As at the date of this Form Call-1, the Applicant had not complied with the directions.  There was nothing to suggest that she had changed her address or had not received the directions.  Having considered the nature of the two applications and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the applications be determined on paper without an oral hearing.

The Applicant’s case

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

7.  The Applicant is an Indonesian national, now 31 years of age.  In early 2011, her stepfather borrowed seven million Indonesian Rupiah from a moneylender for the Applicant to settle her agency fee so as to enable her to go to work as a foreign domestic helper in Hong Kong.  The Applicant signed the loan agreement as the guarantor.  She was given the money borrowed.  Since working in Hong Kong in 2011, she remitted one million rupiah to her stepfather every month to pay the monthly interest under the loan to the moneylender.  However, her stepfather did not pay the moneylender but spent the money on the family and education expenses for the family and her younger siblings. 

8.  In mid-2014, the Applicant was informed by her mother that her stepfather had never made any payment to the moneylender. Since then, the Applicant stopped remitted money to her stepfather. 

9.  In April 2015, her stepfather telephoned her and threatened her that if she could not pay the loan, she had to marry the moneylender. She refused as she had heard that the moneylender was married and treated his wife in a violent manner.  Her stepfather became very angry and threatened to kill her if she returned to Indonesia.

The finding of the Board

10.  The Board considered the Applicant’s account as adequately consistent with her case of family dispute with her stepfather and assessed her claim on the basis of the case as she asserted and credible Country of Origin Information (“COI”).

11.  The Board rejected the Applicant’s claim that the Indonesian police will refuse to give her protection as speculative and unsupported by evidence.  On the basis of credible COI, it was satisfied that adequate state protection would be available to protect her from harm from her stepfather and moneylender.  It found that it was only out of the Applicant’s own volition arising from her speculation that she did not wish to seek police protection.

12.  The Board found the ill-treatment suffered by the Applicant arose out of a purely private family dispute between her and her stepfather and that the ill-treatment which she suffered or did/would suffer on her return did/would not attain the minimum level of severity required to prove torture.

13.  The Board also found there was no evidence that the stepfather had connection with the police or government; or represented the police or the government to hurt her or had authority to do so. There was no state acquiescence in what the Applicant’s stepfather did to her.

14.  Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant has failed to prove her entitlement to protection under any of the four applicable grounds under the USM.  Hence, it dismissed her appeal against the Director’s Notice.

The withdrawal application

15.  Despite the Court’s directions, the Applicant declined to state her grounds for withdrawal or confirm that her alleged fears and risks of harm had been resolved or that she does not anticipate any real chance that she will be harmed or otherwise ill-treated by her stepfather or the moneylender, if returned to Indonesia. The Court is skeptical of the reason for her non-refoulement claims, her Leave Application as well as her Withdrawal Application. It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality.  It would therefore be in the Applicant’s best interest to have her Leave Application determined in order to ensure that she would be allowed to continue her stay in Hong Kong if she is entitled to non-refoulement protection rather than to allow her Withdrawal Application and thereby depriving her the benefit of a screening of her entitlement to challenge the Decision by way of judicial review.  Hence, the Court refused the Applicant’s Withdrawal Application and proceeded to determine her Leave Application.

The applicable legal principles

16.  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

17.  The Applicant has not advanced any specific grounds of application.  In the absence of specific grounds of application, 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.  The essence of the Applicant’s complaint is that she disagrees with the finding of the Board that it is safe for her to return to her home country.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Indonesia.  

Conclusion

18.  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 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.   These are finding of facts which 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 Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success. 

19.  For the above reasons, the Applicant’s withdrawal application and leave application are 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 violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[4]  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

[5] [2018] HKCA 524 at [14(1)]