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

HCAL 419/2019

[2022] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 419 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by the Honourable Mr Justice Johnny Chan):

Introduction

1.  The Applicant applies for leave for judicial review of the decision dated 11 January 2019 of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board’s Decision”).

2.  The Applicant did not request a hearing.  This application is dealt with on paper.

3.  The Applicant is an Indonesian female born on 12 February 1980. She first arrived in Hong Kong on 28 April 2006.  Since then, she took up a number of employments as a foreign domestic helper with various employers.  She last entered Hong Kong on 24 August 2015 on a visitor visa and was permitted to remain in Hong Kong until 23 September 2015.  She overstayed and surrendered to the Immigration Department on 6 October 2015.  She was released on recognizance on the same day.  She raised her non-refoulement claim by written significations. The Applicant claimed that, if refouled, she would be harmed or killed by an Ahmad, a loan shark in Indonesia, upon return to Indonesia because she was unable to repay a loan borrowed by her husband.

4.  According to the Applicant, in around 2007, her husband Sujati borrowed 40 million IDR from the Bank Republik Indonesia (“SRI”). The Applicant acting as the guarantor and provided her identity card copy and original land certificate for registration as a guarantor. 

5.  After the loan from SRI, Sujati raised another loan from Ahmad, the loan shark, and borrowed 40 million IDR.  Again the Applicant was the guarantor for the loan and Sujati gave Ahmad the Applicant’s identity card copy and original land certificate.

6.  Sujati opened a grocery shop in the same year with the money he borrowed.  Business was good for the first 6 months and he was able to make repayments for the loans.

7.  In 2008, Sujati’s business went bankrupt and the grocery shop was closed down.  He failed to make any repayment to SRI or Ahmad.  In the same year, Sujati left home without the Applicant’s knowledge.  She had no idea where Sujati would have gone and had no means to contact him.  No report was made to the police about the disappearance of Sujati.

8.  Since the disappearance of Sujati, SRI had contacted the Applicant. SRI dunned repayment from the Applicant. SRI told the Applicant that failing repayment by the Applicant, SRI would confiscate the Applicant’s land certificate.  In 2008, the Applicant had received 3 letters from SRI demanding the Applicant to repay the loan for Sujati as she was the guarantor.  Since then, SRI went silent and did not contact the Applicant anymore.  No action was taken by SRI to take away the Applicant’s land.  The loan with SRI still remains unsettled.

9.  Since the disappearance of Sujati, Ahmad the loan shark came to the Applicant’s house and dunned for repayment of the loan.  He left after the Applicant had told him to wait for Sujati’s return.  Around 1 month later, Ahmad came back again, he demanded that the Applicant should make repayments for Sujati.  The Applicant said she did not have the money but she would try to locate Sujati.  Ahmad was not happy with the Applicant’s reply and he threatened to take away her house and to kill her.  Ahmad then left the Applicant’s house.

10.  As the Applicant was in need of money.  She decided to come to Hong Kong to work as a domestic worker.  She left her home village and went to Jakarta, Indonesia and received seven-month domestic helper training.  During her training in Jakarta, she did not have any contact with Ahmad.

11.  During the Applicant’s stay in Hong Kong, Ahmad could not contact the Applicant directly as he did not have her telephone number.  However, Ahmad went to the Applicant’s home in her home village once every one to two months and threatened her parents that if the Applicant did not repay, he would kill her whenever he saw her.  No police report was made by the Applicant’s parents.

12.  The Applicant returned to Indonesia from Hong Kong for vacation from around 2009 to 2010.  During her return visits, she repaid Ahmad around 7 million IDR by instalments. Therefore, Ahmad did not harm her. The Applicant did not return to her home village for her last trip, instead, she stayed at the employment agency in Jakarta.

13.  It is the Applicant’s case that she no longer has the ability to repay SRI and Ahmad.  She believes that Ahmad will target her and kill her if he finds her in Indonesia.  Her parents told her that Ahmad is still looking for the Applicant and is still eager to collect the debts from her.  Ahmad did not hurt the family of the Applicant.

14.  As for the loan with SRI, the Applicant still has not settled the loan with SRI but SRI has remained silent on the matters.

15.  It is the Applicant’s case that she has no other fear apart from the threat from Ahmad. The Applicant stated that police or authorities in Indonesia cannot and will not be able to help her as they would regard her problem as a private matter and she has no money to bribe them to take action.  It is the Applicant’s case that she cannot relocate to other parts of Indonesia as Ahmad and his allies/friends will still be able to find her no matter where she hides.  She has no family members in other cities in Indonesia.

The Director’s Decision

16.  The Director considered the Applicant’s application.  The Applicant’s non-refoulement claim was assessed on all applicable grounds, including torture risk, risk of her absolute and non-derogable rights under the HKBOR (including BOR2 risk and BOR3 risk) being violated, and persecution risk.

17.  By Notice of Decision dated 29 March 2018, the Director notified that the Director refused the Applicant’s non-refoulement claim on the ground that her claim was not substantiated for reasons given in the Notice of Decision.  The Director found that the level of risk of the Applicant being harmed or killed upon refoulement was assessed to be low; the low intensity of past ill-treatment from Ahmad is indicative of a low future risk of harm upon the Applicant’s return to Indonesia; that state protection was available to the Applicant and that internal relocation was an option open to the Applicant, given the fact that Ahmed did not find the Applicant during her stay for job training in Jakarta.

The Board’s Decision

18.  The Applicant appealed against the Director’s Decision.  The Board held the appeal hearing on 12 December 2018.  The Applicant attended the hearing.  At the appeal hearing, the Applicant confirmed she had received the Hearing Bundle; she also confirmed the truth and correctness of all the evidence contained in the Hearing Bundle.  She confirmed that everything in relation to her claim was provided and she had nothing else to provide to the Board for consideration.

19.  The Board’s consideration of the Applicant’s case covered all the applicable grounds, including:

(1)     Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap. 115 (“the Ordinance”) (“torture risk”)；

(2)     Risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR3 risk”)；

(3)     Risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR2 risk”); and

(4)     Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“RC”) (“persecution risk”).

20.  The Board set out in details its material findings of fact in paragraphs 56 to 75 of the Board’s Decision.

21.  The Board considered the Applicant’s non-refoulement claim under torture risk.  The Board found that, based on the material findings of fact in paragraphs 56 to 75, the Applicant had failed to satisfy the elements in the definition of torture.  For reasons given in paragraphs 101 to 110 of the Board’s Decision, the Board found that none of the elements in section 37U of the Ordinance was satisfied. There was no evidence that Ahmad was a public official or that he was acting in the capacity of the state.  There was no evidence that the claimed physical and/or mental pain or suffering had been inflicted intentionally, and inflicted for a purpose related, even remotely to the interests and /or policies of the torture risk state. There was no evidence that the alleged torture was inflicted by, or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.  The Applicant had never sustained any injuries, physically or mentally to the requisite degree.  The acts of Ahmad were private in nature and had no connection with the interests or policies of the state or its organs. The Board found that the ill-treatment that the Applicant received did not meet the requisite level of severity, and even if it did, it would be the bare minimum and not the “severe pain or suffering” within the definition of “torture” under section 37U(1) of the Ordinance. The Board found that the Applicant’s claim for protection from refoulement under this ground failed.

22.  The Board considered the Applicant’s non-refoulement claim under BOR3 risk.  For reasons given in paragraphs 85 to 95 of the Board’s Decision, the Board found that, based on the material findings of fact in paragraphs 56 to 75, the Applicant had failed to show that if refouled, there would be a real risk or substantial grounds for believing that she would be subjected to a real risk of prohibited treatment, namely, torture and CIDTP. The evidence adduced by the Applicant disclosed no grounds for so believing. The Applicant failed to show that the Indonesian government failed to provide reasonable protection to the Applicant against the claimed violent treatment by Ahmad. The Board also found the allegations of the Applicant to be implausible and disproportionate.  The Applicant failed to satisfy the Board to the required standard that the claimed risk was real and personal. The Applicant also failed to show that the alleged ill-treatment she would face if refouled would attain a minimum level of severity.  She also failed to show a genuine and substantial risk of being subjected to the alleged ill-treatment.  In conclusion, the Board found that the Applicant’s claim for protection from refoulement under this ground failed.

23.  The Board considered the Applicant’s non-refoulement claim under BOR2 risk.  For reasons given in paragraphs 96 to 100 of the Board’s Decision, the Board found that, based on the material findings of fact in paragraphs 56 to 75, there was no real chance that Ahmad would go after the Applicant to kill her, or that in the event Ahmad would do so, the state would be unable or unwilling to protect the Applicant. The Board found that the Applicant’s claim for protection from refoulement under this ground failed.

24.  The Board considered the Applicant’s non-refoulement claim under persecution risk. For reasons given in paragraphs 76 to 84, the Board found that, based on the material findings of fact in paragraphs 56 to 75, the Applicant had failed to show that she had a well-found fear of being persecuted for a RC reason.  The Board found that the cause of the Applicant’s claimed fear out of personal debts and guarantor liability is private in nature.  The Applicant did not have a genuine and well-founded fear of ill-treatment for any of the RC reasons. The Applicant failed to show that she had been denied protection by the state. The Board considered the relevant COI and found that there was nothing to show that, if refouled, the Applicant would not be afforded requisite level of state protection. The Board found that the Applicant’s claim for protection from refoulement under this ground failed.

25.  For the above reasons, the Board affirmed the Director’s Decision dated 29 March 2018.

Application for leave to apply for judicial review

26.  The Applicant filed Form 86 on 14 February 2019 for leave to apply for judicial review of the Board’s Decision.

27.  In her affirmation in support of this application, the Applicant said she wanted to appeal the decision made by the Immigration Officer.  She attached a letter dated 11 January 2019 issued to her by the Board notifying her that the Board had reviewed her case and decided that the Director’s decision should be confirmed.

Consideration

28.  The role of this Court is different from the role of the Board. As the Board right stated, the hearing of the Applicant’s case before the Board was not an appeal but was a consideration of the Applicant’s case afresh and as a “rehearing” of the decision/determination of the Director.  The Board’s consideration also included an assessment of the evidence adduced by the Applicant and the Board could make findings of facts.  All questions of law and facts were at large before the Board.  The role of this Court is supervisory in nature, it is the duty of this Court to ensure that the Board complied with the public law requirements in coming to its Decision on the Applicant’s appeal before the Board.  Following the principles in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA and Nupur Mst v Director of Immigration [2018] HKCA 524, the Court should not usurp the fact finding power of the Director and the Board.

29.  Bearing in mind the above principle, the Court examined the Board’s Decision rigorously and subjected it to anxious scrutiny.

30.  At the hearing before the Board, the Applicant confirmed that everything in relation to her claim was contained in the Hearing Bundle and she had nothing else to provide to the Board for consideration. On that basis, the Board was entitled to assess the Applicant’s evidence given before and make findings against her. See Li Defan & Another v HKSAR (2002) 5 HKCFAR 320.

31.  The Court does not find any error of law or procedural unfairness in the Board’s decision.  The Board had duly taken into consideration all the relevant matters for and against the Applicant.  The Board had not taken into consideration anything irrelevant. The findings of the Board cannot be said to be Wednesbury unreasonable or irrational.  All the matters taken into consideration by the Board are relevant to the Applicant’s claim for non-refoulement.

32.  In this application, the Applicant fails to advance any valid grounds to challenge the Board’s Decision.  After examination of the Board’s Decision, the Court does not see any realistic prospect of success in the Applicant’s intended judicial review.

Conclusion

33.  For the reasons given, I refuse to grant leave to the Applicant to apply for her intended judicial review.  I dismiss her application.

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