RESTU DWI AMBARWULAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL590/2017

[2018] HKCFI 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 590 of 2017

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 refused.

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

1.  The applicant is an Indonesian national who last arrived in Hong Kong on 17 September 2012 to work as a foreign domestic helper.  On 7 February 2013 her employment contract was prematurely terminated but she did not leave Hong Kong as required within 14 days and overstayed from 22 February 2013.  On 4 September 2013 the applicant was arrested and then she lodged a non-refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 26 November 2015 and 21 February 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 25 August 2017.

2.  The applicant lodged a notice of application for leave to apply for judicial review on 7 September 2017 and requested an oral hearing.  The application was heard on 6 Febuary 2018 and the applicant appeared in person having had her application for legal aid refused.  The basis of her claim was that if she were to return to Indonesia she would be killed by a moneylender as well as a debt collector from a bank because she had failed to repay loans.  She was also afraid of her ex-husband because he was very angry she had begun divorce proceedings.

3.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only need summarise it here.  The applicant was born in 1988, married in 2002 and had a daughter in December 2002.  The applicant was subjected to domestic violence for many years but did not leave her husband because of their daughter.  He was a drunk as well as a womaniser and when she scolded him for being drunk he would slap her face; this would happen as often as twice a week.

4.  In 2010 her husband borrowed 15 million rupiahs from the BRI bank and they both signed a loan agreement.  In 2011 they both borrowed money from a moneylender and put their house up for security.  They had borrowed this money to start a business but it failed and they both managed to only make about six months’ repayments to both lenders.

5.  In 2012 the moneylender came with two men and threatened to hurt them both if her money was not repaid.  A member of staff in the bank would come to their house whenever they were late in making a monthly instalment but no threats were made.  The applicant decided to work overseas to earn money to repay the loans and the moneylender agreed to this plan.  The applicant then received training and left Indonesia in September 2012 but was prematurely terminated in February 2013.  She was unable to find another employer.

6.  In 2013 her husband disappeared with their daughter but not before sending her a message in Hong Kong that she was now solely responsible for repaying the debts.  The applicant then asked her father in Indonesia to help her file for divorce.  She has not been in contact with her husband since.  However, the moneylender has frequently sent her threatening messages until she changed her phone number in Hong Kong.  After that the moneylender went to her parent’s home regularly looking for the applicant.  She told the applicant’s father that she would kill the applicant if she did not repay the loan.  She lost contact with her family in late 2014.  She is sure if she returns home she would be harmed by the moneylender, her ex-husband and the bank authorities.

7.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   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, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

8.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  He set out the law correctly and the key legal principles applicable to the four grounds.  He set out the applicant’s case, her evidence and his analysis of it.  He considered the physical violence that she had suffered at her husband’s hand was relatively minor; she had never needed medical treatment.  She has had no contact with him since mid-2013 and their problem is a domestic matter.  The adjudicator also considered the fact that neither the applicant or any member of her family had ever been physically assaulted by the lending bank or the moneylender or the moneylender’s men.  This dispute was a financial and private matter.

9.  The adjudicator accepted the applicant’s evidence but found that even on her own facts her past experiences did not meet a minimum level of severity; she had not suffered serious injury or harm in the past.  He found that she had failed to show there was a real risk in the future of a serious violation of human rights, serious or intolerable harm.  The adjudicator found that the applicant had not successfully made out a case for non-refoulement protection. She had not shown she was at risk of torture, she was unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  He confirmed the decisions of the Director.

Leave to apply for judicial review

10.  I have considered, with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

11.  The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise submits both decision-makers failed to properly consider Country of Origin information and they cherry picked at that information.  They also failed to consider the concept of extended state acquiescence.  They failed to properly consider the applicable grounds and apply her evidence to them.  The adjudicator of the TCAB is accused of failing to maintain a high standard of fairness and he highlighted her inconsistencies and exaggerations without giving her an opportunity to clarify or explain any discrepancies.

12.  Leaving aside my view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only, the applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.  Leaving aside that view, even if this application applied to both decision-makers, there are no merits in the grounds against either.

13.  There are no particulars put forward in his grounds against either the adjudicator or the Director.  The applicant would have been legally represented before the Director.  His legal representative would have known that the Country of Origin information was relevant.  Because of the lack of particulars, I find no merit in the accusation that the decision-makers cherry picked at information to the detriment of the applicant.

14.  The decision-makers are criticised for failing to consider the concept of extended State acquiescence.  However, the applicant did not rely on this.  The decision-makers did not need to consider this concept in any depth.  In any event, the applicant made no report to the police or any authority.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.

15.  The adjudicator is criticised for highlighting inconsistencies without giving the applicant an opportunity to explain however, the adjudicator does not highlight inconsistencies nor does he accuse her of exaggeration.  This ground is misleading because the adjudicator applies the law to the applicant’s own facts on the basis she is telling the truth.

16.  After considering the applicant’s grounds, I do not find any that shows there was an error of law by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

17.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse 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