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

HCAL 1843/2023

[2024] HKCFI 3633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1843 of 2023

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Susilawati (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 9 October 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 16 June 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indonesian. She was born on 8 December 1989 in Desa Pamengkang, Indonesia. She received 9 years of education and had 9 years of work experience as a foreign domestic helper in Singapore and Hong Kong from 2012 to 2021.

The Claim

3.  In around 2015, the Applicant and her siblings decided to renovate and build an extension to their old family home (“Family Home”) which was owned by their parents. The renovation job costed the equivalent of about HK90,000. The Applicant contributed 70% towards the renovation costs because she was working as a foreign domestic helper at that time.

4.  The Applicant became a guarantor of a loan taken out by her friend (“TA”) in around 2014. TA was a fellow foreign domestic helper in Hong Kong and a good friend of the Applicant. In 2015, the Applicant received letters from the Public Bank demanding her to pay HK$41,000 (“Debt”). The demand letters arrived at her Indonesian home and at her employer’s home.

5.  The Debt quickly ballooned to HK$55,000 because of interest and the Applicant sold the Family Home for HK$70,000 to her aunt (“Sale”) to repay the Debt without informing her family members. The Applicant informed the Board that she did not own the Family Home and the Sale might be ineffective. This point was however immaterial to the Claim.

6.  The Applicant tried to hide the Sale from her family members, but they discovered it anyway in 2017. The Applicant’s family was very upset, and her brother (“PD”) was furious towards her. PD sent threatening messages to the Applicant’s Facebook account once or twice, threatening to kill her if she returned to Indonesia. The Applicant deactivated her Facebook account out of fear.

7.  The Applicant returned to her home in Indonesia for about a week in early January 2018. PD attacked the Applicant with a sickle for a few minutes and she suffered injuries at her leg and arm (“Incident”). The Applicant then fled to her friend’s home in Jakarta. PD tried to look for the Applicant, but was unsuccessful.

8.  The Applicant returned to Indonesia for four more times between 2018 and 2020 to see her mother and to wait for her visa. She stayed at different hotels in Indonesia to avoid PD. PD sent threatening messages to the Applicant from time to time. The Applicant’s last contact with her mother was in February 2021 when her mother warned her not to come back because PD was still angry.

9.  The Applicant claimed that PD worked as a farmer and a security guard. She said that PD had a lot of friends in the Indonesian police force, so the police would not protect her.

10.  The Applicant claimed that she would be harmed or killed by PD if she were returned to Indonesia.

Procedural history

11.  The Applicant arrived in Hong Kong on 5 July 2020 to work as a foreign domestic helper. She was permitted to remain in Hong Kong for employment as a foreign domestic helper until 5 July 2022 or two weeks after termination of employment, whichever was earlier. Her employment was pre-maturely terminated on 18 February 2021. She did not leave Hong Kong within the prescribed period, ie on or before 4 March 2021 and overstayed in Hong Kong.

12.  She surrendered to the Immigration Department on 26 April 2021. By a written representation of 26 April 2021, 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 (“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 (“BOR” and “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 (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

15.  On 13 October 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

16.  On 28 August 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application (“Withdrawal Application”).

The DOI Decision

17.  The Director noted that the low intensity and low frequency of past ill-treatment from PD was indicative of a small future risk of harm upon the Applicant’s return. Further, the injuries she suffered from PD were not serious. The Director did not accept that the ill-treatment (physical and/or mental suffering) attained a minimum level of severity. PD had the opportunities to seriously harm or kill the Applicant when he was armed with a sickle in the Incident, but he refrained from doing so. This showed that PD did not really intend to kill or seriously harm the Applicant.

18.  The Director assessed that the problem faced by the Applicant in Indonesia was purely a private dispute which was confined to her locality. The Applicant’s conduct of returning to Indonesia 5 times from December 2017 to 2020 (4 of which after the Incident) after PD had threatened her was inconsistent with her claimed imminent life-threatening risk from PD. The Director did not accept that there was any substantial risk or any substantial basis of fear that the Applicant would be subjected to any serious harm or ill-treatment at the hands of PD upon her return to Indonesia.

19.  PD was not a member of the state government or imbued with the power or authority of the state. There was no objective and credible evidence adduced to suggest that police officers had ever been involved in the harm or threats the Applicant encountered. There was nothing to suggest that the Applicant was a target of adverse interest to the Indonesian government. After considering the relevant country of origin information (“COI”), the Director found that reasonable state protection would be available to the Applicant, if necessary.

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

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

The Board’s Decision

22.  The Board identified some issues with the Applicant’s evidence at §§19-28 of the Board’s Decision. After clarifying with the Applicant, the Board was prepared to accept the core story of the Claim, namely that the Applicant tried to sell the Family Home due to her indebtedness and this angered PD. (§§32-34 of the Board’s Decision)

23.  The Board accepted that PD was angry with the Applicant and might have issued verbal threats to kill the Applicant but did not accept that he really intended to kill her. The Board was not satisfied that the Incident reflected a genuine intention to kill the Applicant then or in the future. The Board found that the attack was not premeditated and that PD’s death threats were uttered in moments of anger and not meant to be serious threats towards the Applicant. The Board did not accept that the risks from PD were serious or real enough to merit consideration for non-refoulement protection.

24.  PD is a private individual. There was no suggestion that the harm the Applicant feared would be inflicted by, or with the active or passive acquiescence of state officials. Such harm would be directed at the Applicant because of a private, essentially personal, dispute with PD. Reasonable state protection would be available to the Applicant.

25.  The Board found that even if the risks from PD were serious, the Applicant could safely relocate to other parts of Indonesia, such as Bali, Jakarta, Bandung or Yogyakarta to avoid PD. The Board did not accept that PD had the means to locate the Applicant in every part of Indonesia, even with his alleged connection with the Indonesian police. The Board found that the Applicant was able to live peacefully in those cities in the past and this suggested that either PD lacked the means to locate her or the motivation to look for her.

26.  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

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

28.  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”.

29.  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

30.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

31.  In the Supporting Affirmation, the Applicant only stated that: “Respectfully, I write this Affirmation to know [sic] the Court that I don’t want to return back to my country because my life is still in Problem in my country. It is very Dangerous to go back because my enemy going to kill me.” She then produced the Board’s Decision and its covering letter as exhibits to the Supporting Affirmation. Although the Applicant said that she had exhibited the DOI Decision as “Exhibit-1”, she had in fact produced the covering letter to the Board’s Decision as “Exhibit-1”. As I have considered the DOI Decision in any event, this mistake of the Applicant does not affect her intended judicial review application.

32.  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.

33.  Having rigorously examined the Board’s Decision and the DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

34.  The Board found that the Applicant had failed to establish a well-founded fear that she would be subjected to the persecution risk nor substantial grounds for believing that she would face a genuine and substantial risk of being subjected to the torture risk, the BOR 2 or the BOR 3 risks, if she were to be refouled to Indonesia. Furthermore, reasonable state protection would be available to her and internal relocation viable.

35.  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 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 proposed judicial review is not reasonably arguable.

The Withdrawal Application

36.  By the Withdrawal Application, the Applicant sought to withdraw her application for leave to apply for judicial review. She stated that she wanted to go back to her home country.

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

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

39.  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

40.  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