SRI PENI v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

HCAL 329/2022

[2022] HKCFI 2784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 329 of 2022

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 by the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 17 March 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 December 2021 (the “Notice”).

2.  A hearing on 17 August 2022 was scheduled for the Applicant.  Notice of the hearing was sent to her by post at her last known address she reported to the Immigration Department.  She did not appear.  The notice was not returned in the course of mail.  There is nothing to suggest she had moved or otherwise not received the notice.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

3.  The Applicant is an Indonesian national, now aged 35.   She last entered Hong Kong on 22 July 2019 to work as a foreign domestic helper.  She was arrested on 29 August 2021 for soliciting for an immoral purpose and was sentenced to six weeks of imprisonment.  Her contract of employment was terminated on the same day of her arrest.  She was released from prison on 11 October 2021.  On 15 October 2021, she raised a non-refoulement claim.

4.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. By his Notice, the Director rejected her claims under all four applicable grounds.  She appealed the Notice, but her appeal was dismissed by the Board’s Decision dated 17 March 2022.  Now she applied for leave to apply for judicial review of that Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.    In gist, she claimed that she would be harmed by a man known as Ari upon her return to Indonesia.

6.  The Applicant was born in Central Java, Indonesia.  She is married with three children.  She received six years of education and has eight years of working experience as a domestic helper.  Her husband operated a painting-trading business.  He sourced paintings from Ari, a wealthy painting distributor.  Towards the end of 2017, seven of her husband’s employees absconded with some paintings.  As a result, her husband became indebted to Ari in the amount of IDR 289 million.

7.  About 5 weeks later, Ari went to the Applicant’s home with four associates.  They yelled at her and asked for her husband’s whereabouts.  When she said she did not know, they loitered around the neighborhood.  Then, her husband moved to Jakarta in 2018 to take up employment there.  Later, the Applicant and their children joined him in Jakarta.  The Applicant had no problem until one day in early 2019 when Ari and three of his men arrived at their home and demanded repayment.  The Applicant promised to pay Ari with the money she was going to earn in Hong Kong as a foreign domestic helper.

8.  The Applicant starting working in Hong Kong in July 2019.  By January 2021, she had remitted IDR 17 million to Ari.  Then she stopped paying. Ari called her and threatened to kill her and her husband.  Worried that he could never pay Ari, her husband left their children with the Applicant’s parents and fled to Palu.  The Applicant’s family members were never harmed.

9.  The Applicant learnt from her husband’s family that Ari went to their home every two day to demand repayment and to repeat his death threat.  When she last talked with her father-in-law in August 2021, he told her not to return to Indonesia or she would face danger.

10.  Neither the Applicant nor her family made any report to the police because they believed the police would not intervene in matters relating to private monetary dispute.  Although her husband was able to live in Palu without being found by Ari’s men, he had to worry about Ari all the time and could not lead a normal life.  The Applicant believed Ari would be able to locate her husband eventually and locate her as well if she returns to Indonesia.

The finding of the Board

11.  The Board found that the Applicant’s account consistent with her case of having a monetary dispute with Ari and assessed her claim on the basis that the events she asserted were true.

12.  On the evidence, the Applicant had suffered no mental or physical injury.  Hence, the Board did not think she would face any genuine and substantial risk of being subjected to ill-treatment which would attain a minimum level of severity on her return to Indonesia. 

13.  The Board found that Ari, whom the Applicant alleged was her persecutor, was not a non-state actor.  There was also no evidence that his actions were instigated, acquiesced, sponsored or condoned by the state.

14.  It found that the Applicant’ dispute with Ari was of the nature of a private monetary despite and hence any risk to the Applicant’s life and freedom arising from such a dispute would fall outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol as not being on account of her race, religion, nationality, membership of a particular social group or political opinion.

15.  On the basis of credible Country of Origin Information, the Board was satisfied that the Indonesian government had taken steps to combat corruption, improve police efficiency and effectiveness and protect its citizens.  Hence, it rejected the Applicant’s belief that the authorities would not help her as speculation on her part.  The Board found that state protection of an adequate standard is available to prevent or negate the risk and harm from Ari.

16.  Applying the law applicable to non-refoulement protection under the USM, the Board was satisfied that the Applicant had failed to establish the factual basis in support of her claim for protection under any of the four applicable grounds under the USM.  Hence, it upheld the decision of the Director in his Notice and dismissed the Applicant’s appeal.

Legal principles applicable to judicial review

17.  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

18.  The Applicant did not advance any grounds for judicial review in her Form 86.  In her supporting affirmation, she said she was not satisfied with the Decision because it is “away from facts and reality” and “there is no transparency”.  She had been invited by the Court via its letter dated 4 July 2022 to advise the Court of her first language and to file submissions.  She did not respond.

19.  The essence of the Applicant’s complaint is that she disagreed 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. That is not permissible unless the finding is tainted by errors of law, procedural unfairness or irrationality. In the absence of specific grounds of application, the Court in an application for judicial review 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.  She gave no particulars as to how the Decision was not supported by facts and reality and in what way there was no transparency.  The Court would bear these in mind when scrutinising for error of law, procedural unfairness and irrationality in the Decision.

Discussion and conclusion

20.  The Board assessed the Applicant’s claim on the basis that the case as she asserted were true and on the basis of authoritative and credible country of origin information.  The Board reached its Decision by applying the law applicable to non-refoulement protection under the USM to those facts.  There is no basis to complain that the Decision of the Board is “away from facts and reality”.  As for her complaint about lack of transparency, it is not known what is the basis of her complaint.  In any event, transparency or the lack of it could have no impact on the Decision.

21.  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 Board assessed the Applicants’ claim on the basis of the case as she asserted, but found she would not face any genuine and substantial risk of being subjected to harm or ill-treatment if she is refouled back to Indonesia.  On the basis of credible country of origin information, the Board was also satisfied that state protection of an adequate standard would be available to prevent the risk, if the risk turns out to be real.  It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds.  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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

P.S.:

Presumably in July 2022, the High Court Registry received a letter with a postal chop dated 8 July 2022 from the Applicant addressed to an immigration officer.  The letter was returned to the sender as the High Court was not the proper addressee.   A decision to refuse the Applicant's leave application was made following her failure to attend the hearing scheduled for her on 17 August 2022.  While the Form Call-1 was being finalised, a letter written in Indonesian by the Applicant with a postal chop dated 22 August 2022 enclosing the letter dated 8 July 2022 previously returned to her was received.  The issue of Form Call-1 was withheld pending translation of the two letters.  These letters were translated into English on 31 August 2022.  In the two letters, the Applicant sought to be returned to Indonesia as her troubles in her home country had been resolved.  As the decision to refuse her leave application has already been made, Deputy High Court Judge To ordered that the Form Call-1 and Order be issued.

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 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

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

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