RM v. GERARD PAUL MUTTRIE, ESQ

HCAL 166/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 166 OF 2015

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J U D G M E N T
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I.  INTRODUCTION

1. This is an application for leave to apply for judicial review pursuant to Form 86 filed on 17 August 2015 (“Form 86”) against the following decisions:

(a) the decision by the Director of Immigration (“DOI”) made on 6 January 2015 refusing the application by the applicant (“RM”) for non-refoulement protection (“DOI Decision”);

(b) the decision by a member of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Adjudicator”) made on 27 July 2015 dismissing RM’s petition and confirming the DOI Decision (“Adjudicator Decision”).

2. RM was/is an Indonesian national. She was born in Purbalingga, Jawa Tengah District, Indonesia (where her parents’ home was located) on 24 November 1974. She grew up in a Muslim family with 3 brothers and 2 sisters. Her father (“Father”) was the family breadwinner and her mother was a housewife who raised the children and cared for the family. RM lived with her parents through her childhood and part of her teenage years. She studied at a local school and completed her high school education in 1993. None of RM’s family members was affiliated with any political party.

3. RM was married but divorced in 2007 due to financial problems. She had a daughter who was born in 1994 (“Daughter”). In 1993-1998 RM worked as a factory worker, and in 2000-2013 she worked as a domestic helper in Hong Kong for 5 employers. RM and her family members had never been accused, interrogated, arrested, detained or imprisoned in Indonesia.

4. In/about 2003/2004, RM borrowed about 25 million Indonesian rupiah (“INR”) from Prime Credit (a credit company in Hong Kong) to acquire a paddy-grinding business (including equipment and land) in Indonesia (“1^st Loan”), and she paid HK$2,700/month to Prime Credit for 1 year to pay off the 1^st Loan. Thereafter, RM borrowed 3 further loans from Prime Credit, but she could not recall details of the 2^nd and 3^rd loans which she had repaid. As for the 4^th loan, RM borrowed HK$25,000 (about INR40 million) from Prime Credit in 2007 (“4^th Loan”). Since her contract of employment was terminated that year, RM could no longer repay the 4^th Loan due to lack of income, and was told by Prime Credit via telephone the outstanding amount was about INR15 million. RM did not have any proof/receipt of all such loans from Prime Credit.

5. RM returned to Indonesia as she was unable to secure another contract of employment after termination of her previous contract in 2007. In the 7 months RM remained in Indonesia, she received (a) about 10 letters from a debt collecting company in Indonesia (“DC Company”) that alleged it represented Prime Credit in Hong Kong to recover the outstanding debt, and (b) a letter from an Indonesian lawyer that stated she would be sued in Indonesia if she failed to make full repayment to Prime Credit. The Father and Daughter informed RM that a staff and 2 bodyguards of the DC Company visited her home twice to look for her. They left immediately on learning she was not at home, so RM did not know whether they were armed, but they threatened to take steps to seize RM’s house if she failed to repay the debt to Prime Credit, and told the Father/Daughter that RM had to repay the debt.

6. RM acquired another contract of employment as domestic helper. From May 2008 to August 2010, she stayed in Hong Kong but did not make any repayment to Prime Credit because she had to repay the agency fee and support her parents and Daughter in Indonesia. During her stay in Hong Kong RM received threatening text messages[1] on her mobile telephone from an Indonesian number unknown to her,[2] but the number appeared to be out of service when RM tried to return call. RM then asked her friend, who was a traffic police officer in Purbalingga and whom she knew through the internet but had never met in person (“Friend”), to trace the sender but he was unsuccessful. The Friend said it was no use to report the matter as the Indonesian police (who only dealt with criminal matters) could not do anything as her loan/debt was a civil matter.

7. In/about 2009, RM’s paddy-grinding business collapsed because she was cheated by her husband and his elder sister who also had a share in the business. They sold the business without her authorisation and kept the entire proceeds, so she was left with no business and an outstanding debt. Even before the collapse of the business, RM had not received any income even though she was 60% owner. But she did not report to the police despite being cheated because she wanted to resolve it within the family.

8. In August 2010, RM’s contract of employment was terminated, and she returned to Indonesia. In the 1½ months (ie from August to October 2010) that RM stayed in Indonesia before she secured another contract of employment, debt collectors came to look for her twice, but she was not at home and her family members did not tell them her whereabouts. They did not hurt her family members. Although they wanted to confiscate her belongings at her house, they eventually left without confiscating anything.

9. RM secured another contract of employment in October 2010. After she returned to Hong Kong the threatening text messages continued, but she was unable to identify the sender. In 2012, RM decided to change her Indonesian and Hong Kong mobile telephone numbers. She did not make any repayment to Prime Credit since she had to repay the agency fee.

10. In/about 2012, RM’s parents told her (a) a couple (farmers/ neighbours from her home village) (“Couple”) came to know of her financial situation and the visits by the debt collectors to her house to ascertain her whereabouts when she was away in Hong Kong, and (b) the Couple offered to lend her some money to repay Prime Credit. To resolve the disturbance caused by the DC Company and the threatening messages, RM decided to borrow via telephone INR10 million with monthly interest payable at 10% to repay the 4^th Loan through the DC Company, but there was no written loan agreement between RM and the Couple.

11. RM’s family received a lump sum of INR10 million in cash, and they transferred the whole sum to the DC Company. RM was told such sum was only sufficient to cover interest accrued over the years, but she could not borrow further from the Couple as they did not have any more money to lend her. After RM settled the outstanding interest to Prime Credit, the debt collectors stopped chasing her for several months. RM made 6 instalment payments to the Couple from 2012 to early 2013 on irregular basis. The Couple started to threaten her family that they would seize her family’s property if she did not make regular payments.

12. During RM’s 3-week holiday in Indonesia in/about March 2013, the Couple visited her house once with 2 local gangsters, and they threatened to seize her property due to her failure to repay the debt. RM begged them not to seize her property, and promised them she would return to Hong Kong and continue with her contract of employment to earn money to repay them. In addition, RM paid the Couple INR1 million before she left Indonesia, so the Couple “did not pursue their threats to her”. The Couple and gangsters did not hurt RM and her family during their visit.

13. RM returned to Hong Kong on 24 (or 25) March 2013. During her stay in Hong Kong, RM did not make any repayment to the Couple, and she was told by her family they were still receiving letters from the DC Company. Debt collectors personally delivered the letters to her home, and made enquiries as to her whereabouts from the Daughter.

14. RM was allowed to remain in Hong Kong as a foreign domestic helper until 29 October 2014. But she was arrested by the police for theft on 24 October 2013, and her contract of employment was terminated prematurely on the same day. RM was required to depart Hong Kong on/ before 7 November 2013. But on 29 October 2013 RM was convicted of theft and sentenced to 1 month’s imprisonment. As a result, she could not depart Hong Kong and overstayed since 8 November 2013. On 28 November 2013, RM was discharged from prison and was transferred to the Immigration Department. She was released on recognizance on 22 December 2013.

15. On 24 February 2014, RM raised a non-refoulement claim. Screening interview was conducted on 23 December 2014. Such non-refoulement claim was considered on all applicable grounds under the Unified Screening Mechanism (“USM”)[3] including:

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

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under article 3 of the Hong Kong Bill of Rights and section 8 of the Hong Kong Bill of Rights Ordinance Cap 383;

(c) risk of persecution with reference to the non-refoulement principle contained in article 33 of the 1951 Convention relating to the Status of Refugees.

16. When RM’s application was dealt with by the DOI, she was legally represented. By a Notice of Decision dated 6 January 2015, the DOI rejected RM’s claim. She appealed / petitioned against the DOI Decision. The appeal / petition was dealt with by the Adjudicator by way of paper review. By the Adjudicator Decision dated 27 July 2015, the Adjudicator dismissed the appeal / petition, and confirmed the DOI Decision.

II.  BASIS FOR NON-REFOULEMENT CLAIM

17. RM claimed she could not return to Indonesia since she feared she would be harmed or killed by (a) debt collectors from the DC Company because she was unable to repay the 4^th Loan she borrowed from Prime Credit, and (b) gangsters on the instructions of the Couple as she was unable to repay the Couple. RM did not report to the police for assistance in Indonesia, but she sought assistance from the Friend. RM claimed the Indonesian police would ask for bribes before making a report, and she did not know the channel to complain against misconduct of the Indonesian police such as lodging a complaint to Ombudsman.

18. RM kept in touch with the Daughter who informed RM she was still receiving letters form the DC Company, and the Couple told the Daughter they would wait for RM’s return before taking steps to recover her debt to them. RM feared the Couple would instruct gangsters to harm her if she returned to Indonesia.

19. RM claimed she could not move to other places in Indonesia because she was afraid people would inform the DC Company of her whereabouts in Indonesia, so she would not be safe even if she moved elsewhere in Indonesia. RM believed her life in Indonesia would be full of danger. At her interview by the DOI, RM said she was afraid “they” (presumably the debt collectors) would carry out the threats in the text messages, especially that “They will hurt me. They will rape my daughter and abduct her. I will be harmed”.

20. In the Form 86, RM asserted her problems were “with her own village and a big and famous debt company which have branches all over the Indonesia, so [she] understand that very well, no matter wherever she tried to hide her enemies will find her and harm her. That’s why she choose Hong Kong to seek protection”.

III.  FINDINGS BY THE ADJUDICATOR

21. The Adjudicator accepted without reservation the factual basis of RM’s claim. He found this was an unfortunate case of a domestic helper who got into debt and was pursued by 2 sets of creditors, ie Prime Credit and its Indonesian debt collectors, and the Couple and gangsters they employed. Prime Credit’s debt collectors did not inflict any physical harm on RM. The Adjudicator accepted the unknown person who threatened RM in text messages in 2008[4] must have been someone connected with the Indonesian debt collectors. But the Daughter who was in Indonesia, who had contact with the debt collectors and who still received letters from them, had suffered no physical harm. Indeed, the debt collectors themselves proceeded by way of lawyer’s letter and threats of court action and seizure of property, but did not seem to have taken any steps which might be regarded as illegal. As for the Couple, they demanded payment backed by threats of seizure of property and by the presence of gangsters, but RM suffered no physical harm and the Couple was apparently prepared to accept a part payment and a promise of future payment. RM said she feared (a) harm to herself (but was unclear as to what harm) and (b) the Daughter would be abducted / raped (but the Daughter continued to live at RM’s home without incident, and no similar threat was made since RM changed her telephone number in 2012).

IV.  RELIEFS SOUGHT

22. If leave were granted, RM would seek inter alia the following reliefs under judicial review:

(a) an order of certiorari to bring up and quash the “Decisions of the Respondent”;[5]

(b) an order under Order 53 rule 9(4) of the Rules of the High Court (“RHC”) to remit RM’s claim to the Torture Claims Appeal Board for an oral rehearing before a different Adjudicator;

(c) such further and/or other relief as the court might provide.

V.  INTENDED GROUNDS OF REVIEW

23. RM was not legally represented for the present leave application for judicial review. In the Form 86, RM essentially repeated the factual allegations which both the DOI and Adjudicator had been made aware of and considered. She sought leave to apply for judicial review on the grounds of (a) procedural impropriety / unfairness, and (b) irrationality.

24. On the ground of procedural impropriety / unfairness, RM claimed:

(a) the Adjudicator’s failure to carry out research / inquiry into the country of origin information / conditions (“COI”) had the material consequence of a failure to have regard to relevant and up-to-date COI research, whether of wide and overall general relevance, or focusing on the circumstances of RM, so the Adjudicator Decision was founded upon an unfair procedure;

(b) the failure to call for psychological and psychiatric evaluation / report at any stage of the screening and by the Adjudicator at the appeal stage;

(c) the Adjudicator applied the incorrect standard of proof in the Adjudicator Decision;

(d) the failures at first instance by the assigned duty lawyer resulted in lack of and/or insufficient legal representation for RM and she was not afforded fair procedure.

25. On the ground of irrationality, RM claimed:

(a) the Adjudicator (i) failed to take into account and consequently failed to put any weight on relevant COI research and/or to take into account highly relevant information in the cited COI, (ii) cherry-picked, took into account and put weight on COI of little or no relevance, and (iii) relied and put weight on outdated COI research publications instead of the most updated available, so he arrived at the Adjudicator Decision that was unreasonable to a Wednesbury standard;

(b) the Adjudicator failed to evaluate and make a finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violation of human rights, as mandated pursuant to article 3(2) of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, so it resulted in the Adjudicator Decision that was unreasonable;

(c) the Adjudicator (i) failed to analyse and assess whether state protection existed in Indonesia under the extended meaning, ie whether the state had exercised due diligence or sufficient diligence, and (ii) misdirected himself on the law erroneously as to what the extended meaning of state protection was;

(d) the “Respondent” (ie the Adjudicator) took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact(s) reasonably inferred, and failed to take into account and put weight on facts and inferences that were favourable to RM, so “the Respondent [ie the Adjudicator] arrived at a Decision in dismissing [RM’s] case” that was unreasonable.

26. On 17 August 2015, RM filed her affirmation in support of the application by exhibiting the DOI and Adjudicator Decisions thereto, and confirming her intention to seek leave to apply for judicial review. It was suggested in the Form 86 that RM was a genuine non-refoulement claimant who faced dangerous problems, harassment and torture in Indonesia, and the DOI and Adjudicator came to wrong decisions in assessing her USM claim. It was further asserted that if RM “didn’t run away, she certainly would have been killed by her enemies. [RM’s] problems were getting more and more life-threatening day after day, she had no other choice but to escape to Hong Kong and seek asylum here.” At the hearing of the application, RM confirmed she relied on the matters and grounds as set out in the Form 86.

VI.  LEGAL PRINCIPLES

27. Judicial review is not a further / alternative appeal procedure.  In the exercise of its supervisory jurisdiction in the context of judicial review, the court is to examine whether the DOI and/or Adjudicator, in dismissing the USM claim or petition (as appropriate) (a) made any error of law in his decision, (b) handled the matter or adopted procedures without compliance with high standards of fairness as required by the law and as explained by the Court of Final Appeal in Secretary for Security v Sakthevel Prabaker,[6] and (c) whether the substantive decision satisfied the enhanced Wednesbury[7] test. [8]

28. In a leave application, the applicant must show his/her intended grounds in support of the intended judicial review are reasonably arguable with a realistic prospect of success.[9]

VII.  DISCUSSION

(a) COI

29. I turn to the grounds in paragraphs 24(a) and 25(a) above which were essentially directed at the Adjudicator Decision. In the DOI Decision, “[references] have been made to relevant [COI] …… relating to this claim ……” set out and discussed in paragraph 14.2 and the appendix thereto. The Adjudicator also took note of the COI in paragraphs 13, 54 and 65 of the Adjudicator Decision.

30. In Prabakar, Li CJ commented on what high standards of fairness require in relation to torture claims:

“…… (1) The potential deportee, who has the burden of establishing that he would be in danger of being subjected to torture if deported to the country concerned, should be given every reasonable opportunity to establish his claim. (2) The claim must be properly assessed by the Secretary. (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”[10]

31. What will satisfy the requirement of high standards of fairness would inevitably vary from case to case.[11] It was said in Prabakar that it would not be appropriate for the Secretary for Security to sit back and put the applicant to strict proof, but he instead should draw the applicant’s attention to issues which obviously required clarification/elaboration and/or instances where it was readily apparent that something had gone amiss.[12] After all, the exercise for determining the claim was a “joint endeavour”.[13] This approach recognised that an applicant might be disadvantaged in presenting to the DOI information / materials he might need to establish his claim or the DOI might need to process it,[14] and depending on the facts and issues raised in a case, high standards of fairness might require the DOI to conduct investigation and obtain relevant information and materials on general country conditions.[15]

32. But there would be limits to what high standards of fairness would require of the DOI. I note the Court of Final Appeal in Prabakar was concerned with an unrepresented applicant. But like the applicant in TK v Jenkins & anor (“TK(CA)”),[16] RM here was represented and assisted by the Duty Lawyer Service. In TK(CA), Cheung CJHC in commenting on the duty to make inquiries stated that where the applicant was all along represented, within reasonable bounds, the applicant’s side was expected to conduct its own investigation and obtain information / materials that it required to support / prove its case, so depending on the facts of each case “[there] may be no duty [for the DOI] to keep probing or inquiring where the objective circumstances made it reasonably clear that the applicant and those representing him are aware of what he has to show and has already produced or mentioned all that he wants to produce or mention”.[17] High standards of fairness did not entitle the applicant, having stated his claim, to simply sit back and require the DOI to disprove it.[18] “He takes the initiative in preparing his claim and it is he who knows the basis, both factual and legal, on which he puts his claim. Furthermore, he enjoys the benefit of legal representation to assist him in establishing it. He clearly must play a pro-active role in presenting and substantiating it and assisting the [DOI] to process it.”[19] If the applicant and his legal representatives had not seen fit to obtain and supply such information to the DOI, high standards of fairness would not require the DOI to do so for the applicant “at least in the absence of any request for assistance and an explanation of the difficulties (if any) encountered or anticipated”.[20]

33. McWalters J (as he then was) in AM v Director of Immigration & anor[21] reiterated the separate roles played by the applicant and the DOI in the “joint endeavour”. The claim was that of the applicant who bore the ultimate responsibility for it throughout the processing of it. The burden of proof always remained on the applicant being the person claiming protection from refoulement.[22] On the other hand, the DOI had a reactive role, which was “not to assist the applicant to establish his claim – that is the role of the claimant’s lawyer. Rather, the [DOI’s] role is to ensure that the claim is fairly processed and this may, at times, involve him in using his resources to assist the claimant in addressing matters relevant to the processing of the claim”.[23]

34. Like the DOI, the Adjudicator was also required to employ high standards of fairness and the most anxious scrutiny in his fact-finding exercise, and in so doing he should look at all the material evidence, including COI materials, and carry out a proper analysis. The Adjudicator

should also provide adequate reasons in his decisions to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, if any, evidence he regarded as irrelevant. The Adjudicator had to show how, on the COI evidence available before him, he was able to find that there was no serious risk of harm for the applicant.[24] But the high standards of fairness did not require the Adjudicator to play the role of an adviser to the applicant to cover every possible gap in the applicant’s case. Provided that the Adjudicator had reasonable grounds to believe the applicant had a fair opportunity of presenting the whole of his case in the materials placed before the Adjudicator, there was no obligation on the Adjudicator’s part to seek further clarification or elaboration unless it was apparent something had gone amiss or some salient points had been overlooked.[25]

35. Here, the complaint was that as part of their researches into the COI, the DOI and Adjudicator should have delved more deeply by looking at more information / materials. In my view, the extent to which the DOI and Adjudicator had to research into the COI depended on how RM framed her claim. The relevant enquiry was focused on the elements of state involvement / acquiescence and the consideration of internal relocation.

36. In the case of RM, she and her family never made any report to the police and never sought help from the authorities, and there was no suggestion any government official or anyone in or purporting to be in an official capacity made any direct or indirect threats to harm her.  As to the issues of state acquiescence and internal relocation, there was available COI which (a) supported the general allegation that the Indonesian government bureaucracy and even the judiciary were corrupt, (b) indicated that even if RM reported to the police and they failed to discharge their duties she could take the matter further by complaining to the National Ombudsman Commission (and in my view RM’s assertion that she did not know she could lodge complaint to the Ombudsman could not be an answer), and (c) indicated there was general freedom of movement within the country. Having considered the reports at the referenced web addresses in the appendix to the DOI Decision, I am satisfied they were sufficient, and high standards of fairness did not require the DOI and/or Adjudicator to have regard to further material.

37. RM was legally represented and she was in the best position to understand how she was to present her claim, and to know what materials would assist her in establishing her case. If she wanted the DOI and/or Adjudicator to consider particular materials, it was for her to request that be done. But there was no indication she made any or further request to the DOI and/or Adjudicator for further enquiry. She did not indicate any difficulty either. In this regard, I bear in mind the observations that had fallen from the Court of Appeal in Re MI:[26]

“42. Before leaving this appeal we wish to observe that the common complaint of CAT claimants during the judicial review process is that neither the [DOI] nor the Adjudicator properly understood the basis of the applicant’s claim or that they had failed to have regard, or sufficient regard, to country materials. Lawyers for the claimant then set out in some detail in the Form 86 the legal basis of the applicant’s claim, the legal principles applicable to it and the country materials to which the Director and Adjudicator should have had, but didn’t have, regard. We find this extraordinary given that the courts have repeatedly said that the processing of the applicant’s CAT claim should be one of joint endeavour.

43. The process of joint endeavour is exactly what it says, a process in which the applicant, his legal representative and the [DOI] work together. The [DOI] should not hesitate to involve the applicant and his legal representative in assisting him to better understand the nature and basis of the claim. There is much less room for misunderstanding and complaint when the [DOI] has shown he understands clearly the basis of the applicant’s claim and has had regard to the materials on which the applicant relies.

44. We see no reason why the [DOI] should not require from the applicant’s legal representative, if he has one, a statement of the legal basis of the applicant’s claim, how the requirements of the CAT are met and, where relevant, the country materials on which the applicant relies.  Where the applicant’s claim is based on the extended concept of State acquiescence, the lawyer could be required to explain how it is said there has been a failure of due diligence by the State and how such a failure would subject the applicant to the risk of torture. These comments are just as applicable to the petition stage of the proceedings should the applicant be legally represented at that stage.”

38. In my view, RM failed to demonstrate the DOI and/or Adjudicator had not conducted sufficient enquiries.

39. I note that in paragraphs 4 and 27 of the DOI Decision the DOI referred to “relevant [COI] relating to this claim” listed in the appendix thereto and/or took “into account relevant country information”. The DOI also quoted extensively from materials stated in the available COI. In concluding there was “no indication that the state was involved in, indifferent to or provided any form of encouragement to the debt collectors and the gangsters in threatening to harm [RM]”, the DOI had considered the available COI that appeared to corroborate RM’s assertions, that showed availability of state protection in Indonesia, and that suggested RM could lodge a complaint to the regional government and police if she made a report to the police but its officers received bribes and/or failed to discharge their duty to assist her and/or her family. Plainly, the DOI had considered the significance and effect of such materials.

40. Likewise, the Adjudicator in paragraphs 13, 54-55 and 65-66 of the Adjudicator Decision had considered the aforesaid COI before concluding there was “nothing in the evidence to indicate that the situation is so bad that anyone trying to collect debts from [RM] might think they had encouragement or de facto permission to commit acts of torture against her”, and RM could have moved to Jakarta or Bogor on her home island where presumably she could find work as domestic helper or factory worker. In my view, the Adjudicator also demonstrated due consideration had been given to the COI materials. I disagree the DOI and/or Adjudicator failed to place weight on the available COI. Moreover, the Form 86, RM’s affirmation and/or RM’s oral submissions did not elicit and/or explain how (a) the DOI and/or Adjudicator cherry-picked the available COI, (b) what parts of the available COI they relied on was of little/no relevance or outdated, and/or (c) what updated COI research publications they failed to rely on in arriving at the DOI and/or Adjudicator Decisions.

41. In my view, there is no arguable basis for these intended grounds of review.

(b) Finding of fact

42. It was alleged that the Adjudicator Decision was irrational in that the Adjudicator failed evaluate and make finding of fact as to whether there existed in Indonesia a consistent pattern of gross, flagrant or mass violation of human rights.

43. Although available COI indicated the situation in Indonesia might not be entirely satisfactory, it is settled that the existence of a pattern of violations of human rights in a country does not by itself constitute a sufficient ground for determining that a person will be at risk of torture or CIDTP upon his return to that country. There must be additional grounds indicating the individual concerned will be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture and/or CIDTP.[27] As Au J explained in ST v Betty Kwan & ors,

“The aim of the determination is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return. The exercise is a risk assessment. The risk must be ‘foreseeable, real and personal’. The risk needs not be highly probable, but it must be personal and present.”[28]

44. The difficulty with this ground of review was this: it was essentially a civil debt that gave rise to RM’s claim. The Indonesian debt collectors had not inflicted any kind of physical harm to RM and/or her family. They sent letters to RM asking for repayment of the debt, but such letters did not contain any threatening message but only informed her of the possible legal consequences for defaulting repayment. As for the text messages in 2008, the identity of the sender was unknown (although probably connected with the debt collectors), and the threats had never materialised. The Couple and the gangsters merely threatened seizure of property upon default in repayment of the debt, but neither RM nor her family suffered any physical harm/injury. Also, one could not lose sight of the fact RM never made any report to the police nor had she been arrested or imprisoned in Indonesia. She had not encountered any problem with the authorities in Indonesia. She could leave Indonesia to perform her contracts of employment as domestic helper in Hong Kong, and she could return there on holidays or at the end of her contract of employment.

45. The Adjudicator made similar findings in paragraphs 40-44 of the Adjudicator Decision. He also noted that the Couple was apparently prepared to accept part repayment and a promise of future payment, that the Daughter continued to live at RM’s home without incident, and that no similar threat was made since RM changed her telephone numbers in 2012.

46. In my view, RM had not demonstrated satisfactorily she would be personally at risk. I do not accept this ground.

(c) State protection

47. It was alleged that the Adjudicator Decision was irrational in that the Adjudicator misdirected himself on the law by erroneously stating what the extended meaning of state protection was, and failed to take into account whether state protection existed in Indonesia under the extended meaning, ie whether the state had exercised due diligence or sufficient due diligence.

48. In AM,[29] McWalters J (as he then was) cited the opinion of the Committee against Torture[30] in relation to the scope of state acquiescence. His Lordship pointed out there could be active and passive state acquiescence. The former occurred when the state failed to exercise due diligence to prevent, prosecute and punish a non-state official or private actor. The latter occurred when the state’s indifference or inaction provided a form of encouragement and/or de facto permission to the conduct of a non-state official or private actor. In both scenarios, the state must know or have reasonable grounds to believe that acts of torture or ill-treatment are being committed by a non-state official or private actor. 

49. The DOI dealt with this point in paragraphs 14.2-14.4 and 27 of the DOI Decision by “taking into account relevant country information and the asserted primary facts of [RM’s] case”, and making his “assessment …… that the Indonesian government does not know or have reasonable grounds to believe of [RM’s] claimed feared treatment by the debt collectors and the gangsters, and if the Indonesian government knows or have reasonable grounds to believe the feared treatment, the Indonesian government will exercise due diligence to prevent, investigate and punish the debt collectors and the gangsters”. The DOI in concluding RM was not targeted by the Indonesian government also noted she had never been accused, charged, interrogated, arrested, detained or imprisoned in Indonesia, and she was able to travel freely from Indonesia to Hong Kong without problem.

50. The Adjudicator at paragraphs 5 and 51-52 of the Adjudicator Decision referred to the guidance in TK(CA) and AM, and summarised the principles distilled from those cases which were in line with that in paragraph 48 above. The findings of fact by the Adjudicator set out in Part III above supported his conclusion that there was no acquiescence, active or passive, and that the country condition in Indonesia shown by the available COI he had considered could not take RM’s case any further. The Adjudicator further found RM’s belief that the debt collectors or gangsters would harm/kill her, and her claim that the Indonesian police would ask for bribes before making a report did not form a reasonable basis for inferring state acquiescence.

51. It was also with reference to RM’s account of her suffering as well as the options available to her, including relocation in her home country, that the DOI and Adjudicator refused to accept RM would suffer any real, substantial and personal risk if she were to return to her home country. All these matters were explained in the DOI and/or Adjudicator Decisions. Having regard to the observations in AM and MI, I reject this intended ground of review.

(d) Right to life

52. It was alleged that the right to life is protected under article 28 of the Basic Law and article 2 of the Hong Kong Bill of Rights, and RM’s right to life must be protected from extra-judicial killing such as she would face if she were deported to Indonesia “into the murderous reaches of [her] enemies”. But once it is found that RM has failed to establish personal risk or real chance of sufficiently serious harm at the hands of the debt collectors of the DC Company and/or the gangsters engaged by the Couple, or any harm she might face as a result of the consent or active / passive acquiescence of any public official or person acting or purporting to act in an official capacity, there is no arguable basis for such intended ground.

(e) Incorrect and/or irrelevant considerations

53. It was alleged that the “Respondent” (ie the Adjudicator) arrived at a decision that was unreasonable and irrational by taking into account and putting weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact(s) reasonably inferred, and failing to take into account and put weight on facts and inferences that were favourable to RM.

54. Subject to the requirement of high standards of fairness that the DOI and Adjudicator must respectively observe, the burden of proof rested on RM to prove there were substantial grounds in support of her non-refoulement claim.[31] It was for RM as the applicant to make out her case. This ground sought to argue that various factual matters or issues relevant in the determination of RM’s non-refoulement claim were not properly considered or addressed by the Adjudicator. However, RM did not identify which factual matters / issues or considerations were incorrect, inaccurate or not based in fact(s) reasonably inferred. In the context of the circumstances of this case, especially when the Adjudicator accepted without reservation the factual basis of RM’s claim and made the findings of fact set out in Part III above, I do not see that this complaint is reasonably arguable.

(f) Psychiatric and psychological evaluation/report

55. It was alleged that both the DOI and Adjudicator failed to call for psychological and psychiatric evaluation / report. It is unclear from the Form 86 what the psychological and psychiatric evaluation / report were for. I assume they were suggested to support RM’s alleged mental suffering since neither she nor her parents/Daughter suffered any physical abuse.

56. But in my view, this intended ground is not reasonably arguable. Both the DOI and Adjudicator took RM’s case at its highest and assumed her factual assertions were true. As the DOI and Adjudicator found, there was nothing to indicate a substantial risk or real chance that either the debt collectors or gangsters might inflict serious harm on RM if she returned to Indonesia, and there was nothing to indicate that the authorities there were unwilling or unable to protect her.[32]

(g) Standard of proof

57. It was alleged that the Adjudicator applied the incorrect standard of proof in the Adjudicator Decision. In AM, it was said that “[when] the time comes for the [DOI] and the Adjudicator to make findings of fact in the course of determining the claim or deciding the petition they apply the civil standard of the balance of probabilities”.[33] But RM did not explain how the Adjudicator incorrectly applied the standard of proof when he accepted without reservation the factual basis of RM’s claim and made the findings of fact set out in Part III above. In my view, this intended ground of review has no arguable basis.

(h) Legal representation and fair procedure

58. It was also alleged there were failures at the first instance on the part of the assigned duty lawyer that resulted in a lack of and/or insufficient legal representation for RM, and she was not afforded fair procedure.

59. But RM did not state what such “failures” of the assigned duty lawyer were. There was no suggestion the screening interview was not comprehensive. The length and detail of the DOI Decision evidenced a full presentation of RM’s claim.  In any event, the petition was a rehearing where the Adjudicator reconsidered the claim afresh, and he made the findings of fact set out in Part III above.

60. RM also did not state how she was not afforded fair procedure at the first instance or in respect of her petition to the Adjudicator. If the complaint was the lack of oral hearing in respect of the petition, I bear in mind the guidance in RS[34] and ST v Betty Kwan[35] that an oral hearing is a facet of fairness, and the ultimate issue is whether the DOI and/or Adjudicator acted fairly in processing and re-considering the applicant’s claim. Having regard to the whole of RM’s circumstances (including the factors highlighted in ST) and the fact that the Adjudicator unreservedly accepted the factual basis of her claim, I see no basis for this complaint from the materials before me.

VIII.  CONCLUSION

61. In my view, bearing in mind the high degree of scrutiny required, neither the DOI nor the Adjudicator made any error in coming to

the essential findings in their respective decisions. I find they respectively had given sufficient reasons for coming to those findings, which reasons were rational and sound. RM failed to demonstrate that any of the intended grounds of review was reasonably arguable. I therefore dismiss RM’s application for leave to judicially review the DOI Decision and Adjudicator Decision in respect of her non-refoulement claim with no order as the costs.