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

HCAL 208/2024

[2024] HKCFI 2345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 208 of 2024

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 be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Septi Triwijianti (the “Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (the “Board”) dated 16 January 2024 (the “Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 18 October 2023 (the “DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (the “Claim”).

Background of the Applicant

2.  As set out in the DOI Decision and the Board’s Decision, the Applicant is an Indonesian. She was born on 9 February 1997.

3.  From 2013 to around 2015, she worked as a domestic helper in Indonesia. She worked in a hair salon between 2015 and 2018. She worked as a foreign domestic helper in Hong Kong between November 2018 and April 2023.

The Claim

4.  The Applicant relied on the following facts for her claim. As will be seen later, the Board found that she advanced a materially different case in her appeal to the Board.

5.  In September 2018, the Applicant’s mother injured her leg which required emergency amputation. The Applicant borrowed IDR 30 million (“Loan”) from her paternal cousin, Andre (“Creditor”) for the procedure. According to the Applicant, the Creditor operated his own money lending business in the local village and he hired many people to help with debt collection.

6.  The Applicant did not give much detail about the Loan. She only claimed that the Loan would be due in two years and when it became overdue, a late charge of 15% of the principal would be added to the debt in the 25^th month and the debt would be doubled in the 37^th month.

7.  To support her mother, the Applicant decided to seek employment in Hong Kong with the help of an employment agency. She arrived in Hong Kong on 6 November 2018. She claimed that a large portion of her salary in the first six months of her employment was used to settle the agency fees. She remitted HK$2,000 per month to her family, which was used to pay for the medical care of her mother.

8.  The Creditor came to her home in February 2019 to demand repayment of the Loan. He visited her home again in March 2020 and demanded her house certificate as collateral but her father refused. The Applicant failed to repay the Creditor in April 2020.

9.  In January 2021, the Creditor obtained the land certificate to her family’s farmland of some 0.5 hectare in size from her father. Her father gave the Creditor the land certificate and he warned that his subordinates would keep coming to her home unless she paid off the debt.

10.  In mid-2022, the Creditor sold the farmland and forgave half of the outstanding debt. He reminded her father that a 15% interest charge would be added to the debt if he did not receive payment by the end of 2022.

11.  The Creditor visited her family again in April 2023 for the outstanding Loan. He also made numerous calls to her brother when he threatened to kill the Applicant. The Creditor did not harm her family in Indonesia.

12.  The Applicant feared that if she were returned to Indonesia, she would be harmed or killed by the Creditor because she failed to repay the Loan.

Procedural history

13.  The Applicant arrived in Hong Kong on 6 November 2018. Her permission to stay in Hong Kong as a foreign domestic helper was last extended to 1 July 2023 or 14 days after termination of her employment. Her employment was pre-maturely terminated on 4 April 2023. She did not leave Hong Kong within the prescribed period, ie on or before 18 April 2023 and overstayed in Hong Kong. She was arrested on 19 August 2023 for having overstayed in Hong Kong.

14.  By a written representation of 27 August 2023, the Applicant lodged the Claim.

15.  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 (the “Ordinance”) (“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 (the “BOR”) (“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 (“Refugees Convention”) (“persecution risk”).

16.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (the “Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

17.  On 24 January 2024, the Applicant filed the Form 86 herein (the “Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (the “Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and the Director as the interested party.

18.  On 13 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that the problem in her country had been solved and that she was safe in her country (the “Withdrawal Application”).

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditor intended to harm the Applicant. This was because the Creditor had never harmed her family in Indonesia and his death threats towards the Applicant were only issued through the Applicant’s brother over the phone.

20.  On the issue of state protection, the Director found that there might be some inefficiency or corruption problems within the Indonesian police but there were objective indications in the country of origin information (“COI”) that the Indonesian government took steps to improve the police force. The Director found that the Indonesian government was able and willing to protect the rights of its citizens.

21.  The Director further found that internal relocation would be viable. If she moved to Bali or Surabaya, the Creditor would have great difficulty in locating her. After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate to those areas and lead a normal life.

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

The Board’s Decision

23.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at hearing before the Board, the Board formed the view that the Applicant was not a witness of truth and that she had failed to prove the facts of her claim on the balance of probabilities.

24.  The Board noted that the Applicant did not give much detail about the Loan in her written case and invited the Applicant to clarify at the hearing. She testified that she was required to pay IDR 3.5 million per month under the Loan, which she did between September 2018 and April 2020.

25.  The Board noted that her job at the hair salon only paid IDR 500,000 per month and she had to support her mother and herself with this salary. The Board expressed doubts about how she was able to make the two IDR 3.5 million repayments between September and November 2018 when she was still in Indonesia. The Applicant did not give a clear answer.

26.  The Board further noted that it was her evidence that she used a “big” portion of her salary in the first six months of her employment in Hong Kong to pay back the employment agency fees. She also claimed that her mother’s medical expenses exceeded IDR 10 million per month. Her maximum remittance to her family (i.e. her salary in Hong Kong plus food allowance minus personal spending) was calculated to be less than IDR 10 million per month even when the most favourable exchange rate was used. When asked how she managed to keep up with the IDR 3.5 million monthly loan repayments and her mother’s medical expense of IDR 10 million per month with her salary, she vaguely said that her family sold “some stuff” to help with the repayment.

27.  The Board found it incredible that her family could help the Applicant financially just by selling “stuff”, particularly when the Applicant claimed that she was the sole bread winner for herself and her parents (§38 of the Board’s Decision).

28.  The Board also noted numerous other inconsistencies between her testimony and her written case. She testified that her mother underwent a second surgery in April 2020 and that her family pledged their house certificate to a bank in April 2020, which were not mentioned before the Director.

29.  Further, when the Board asked her why the Creditor asked for repayment of the Loan in February 2019 and March 2020 when she was not in default during those periods, she claimed she got the timing wrong and that the Creditor first asked for repayment in May 2020.

30.  The Board asked her how the Creditor could demand the house certificate when the same had already been pledged with a bank. She changed to say that the Creditor only asked for the farmland certificate and not the house certificate. The Board found that this contradicted with her claim before the Director.

31.  The Board found the above inconsistencies to be suspicious and that the Applicant was incredible.

32.  As for her claim that her father gave up the farmland to satisfy half of the outstanding debt, the Board found this part of her case to be “totally unreasonable”. According to the Applicant, she made 18 monthly repayments totaling IDR 63 million, which was more than double of the Loan principal (IDR 30 million). In the circumstances, her father would have no reason to sell the farmland to satisfy only half of the outstanding indebtedness originating from the Loan.

33.  The Board also found it inherently improbable that the Creditor would have failed to visit her brother in Indonesia to pressure him or ascertain the Applicant’s whereabouts. According to her, the Creditor only called him to say that she would be killed if she failed to repay the Creditor.

34.  Because of the above, the Board found the Applicant’s alleged loan arrangement and the associated fears arising out thereof unbelievable and rejected the same. The Board found that the Applicant would not face torture risk, BOR 2 and/or 3 risks, nor persecution risk upon her return to Indonesia. Notwithstanding this finding, the Board went on to evaluate her claim for protection on the basis that the facts she relied on were true.

35.  The Board assessed the risk of harm to her from the Creditor to be low. The Board noted that the Creditor and the Applicant belonged to the same clan family, although they had had little contact in the past. Other than the matter regarding the Loan, they did not share any grudge. The Creditor only made mild demands towards her parents peacefully and did not harm them. Although the Creditor had threatened to kill her, this appeared to be uttered in anger and did not represent a serious intention to harm her. There was not the slightest violence in all the alleged demands made by the Creditor. There was nothing to suggest that the Creditor had any real intention to carry out the threat and harm her.

36.  The Board further held that the risk of harm she faced did not exceed a minimum level of severity. The Creditor did not use any violence towards her family members in Indonesia and he did not harass her brother or sister. There was also no evidence that the Applicant suffered mental harm that would exceed the requisite threshold.

37.  The Applicant claimed that she had no money to bribe the Indonesian police and she would be denied protection. The Board accepted that some COI reports suggested that there were corruption problems in the Indonesian police. On the other hand, there were COI reports which showed an ongoing effort by the Indonesian government to combat corruption. It concluded that corruption was still present in Indonesia but the government had taken substantial steps to deal with the corruption problem.

38.  Neither the Applicant nor her family had reported the Creditor to the Indonesian police. There was nothing to suggest that she would be treated differently than an ordinary Indonesian national or that she would be denied protection. It was pure speculation on her part that she would not receive protection in Indonesia. The Board further noted that there was no evidence to suggest that the Indonesian police or the authorities participated or acquiesced in the Creditor’s actions.

39.  The Board therefore found that reasonable state protection would be available to her upon her return.

40.  The Board further held that internal relocation would be viable. Indonesia was a vast country with over 280 million people. With her work experience and good health, she could live in Bali, Surabaya or Batam and it would not be unduly harsh to expect her to do so. It was pure speculation on her part that the Creditor would be able to locate her everywhere in Indonesia because there was little credible evidence about the Creditor’s resources or power.

41.  In relation to torture risk, the Board found that the Creditor did not act in an official capacity. There was no evidence of acquiescence by the state and the Applicant had not claimed that a consistent pattern of gross, flagrant or mass violations of human rights existed in Indonesia. State protection had also been found to be available to her. Her claim under torture risk therefore failed.

42.  In relation to BOR 3 risk, the Board found that she did not face any genuine and substantial risk of ill-treatment that would exceed a minimum level of severity. The verbal threats to her were “weak” and unlikely to be carried out. Her claim under this risk also failed.

43.  In relation to BOR 2 risk, the Board found that there was no substantial ground for believing that she faced a real risk to her life and her claim under this ground failed.

44.  In relation to persecution risk, the Board found that the risk of harm to her arose out of a private loan. It had nothing to do with any of the Refugees Convention reasons, ie race, religion, nationality, membership of a particular social group or opinion. Her claim did not fall within any of the Refugees Convention reasons and she failed to establish any persecution risk.

45.  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

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

47.  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”.

48.  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

49.  In the Supporting Affirmation, the Applicant put forward the following grounds for her intended judicial review:

(1)  The Creditor is very powerful in the society. Authorities listened to him.

(2)  The Creditor gave money to police. Police did not follow law.

(3)  The Adjudicator did not consider her claim and directly dismissed her claim.

(4)  She had submitted documents in her mother language to the Adjudicator but the Adjudicator did not accept them because he could not understand.

(5)  She requested time to arrange for translation of her documents but “my officer had no time”.

(6)  The translator/interpreter was not helpful and asked her not to take long time for interview.

50.  In the Supporting Affirmation, the Applicant only exhibited a copy of the Board’s Decision without other supporting documents.

51.  In §4 of the DOI Decision, the Director recorded that the Applicant was represented by the Duty Lawyer Service in the Claim process handled by the Director. She attended the screening interview before the immigration officer with her duty lawyer.

52.  In disputing the findings on availability of state protection and feasibility of internal relocation, the Applicant seeks to challenge the findings of fact of the Director and/or the Board which is not permissible in a judicial review.

53.  In fact, the Director had in §15 to §23 of the DOI Decision set out the reasons for his findings on alleged power of the Creditor, the availability of state protection and the feasibility of internal relocation.

54.  The Board had also considered the same in §58 to §71 of the Board’s Decision.

55.  The Board had considered the Claim and set out detailed reasons for its findings and rulings in the Board’s Decision which went into 95 paragraphs and 25 pages. I do not see how the Applicant may substantiate her assertion in the Supporting Affirmation that: “Adjudicator did not consider my claim. Adjudicator directly dismissed. He did not even take time or did not think about my life.”

56.  In §6.27 of the DOI Decision, the Director recorded that in her claim form, the Applicant stated that she did not have any documents to submit in support of her claim. She confirmed in the screening interview that apart from what she had said or stated before or in the interview, she did not have other information or documents to submit to support her case.

57.  In §21 of the Board’s Decision, the Board recorded that at the hearing, the Applicant confirmed that her submitted documents were true and correct and she was willing to adopt the contents thereof as part of her evidence. There was no record of the Applicant requesting to submit further documents to the Board at the oral hearing.

58.  In the Supporting Affirmation, the Applicant alleged that she had further documents to submit which were not accepted by the Board. This is inconsistent with the records contained in the DOI Decision and the Board’s Decision. In the notice of appeal dated 24 October 2023 for the Appeal, the Applicant had handwritten a statement in support of the Appeal. In this statement, the Applicant did not mention that she had further documents to submit in support of the Appeal. Furthermore, the Applicant had not specified in the Supporting Affirmation what further documents submitted had been rejected by the Board nor exhibited such documents to the Supporting Affirmation. The Applicant’s such assertions were only vague and bare assertions. I find no merits in her such complaint.

59.  The Applicant complained that the interpreter did not assist her. In §6.1 of the DOI Decision, it was noted that the Applicant could speak simple Cantonese. The same was noted in §5 of the Board’s Decision. I note that the Applicant had prepared the Supporting Affirmation and the Withdrawal Application, all of which were in English, without requiring interpretation.

60.  It seems that the Applicant can manage to express herself in both Cantonese and English, albeit not in the most fluent way. It is also noted that the Applicant was legally represented at the screening interview. If the interpreter had failed to assist her at the screening interview before the immigration officer or at the hearing before the Board, she could raise that with the interviewing officer or the Board. There was no record of such complaints.

61.  I see no merits in the Applicant’s complaint on the language issue.

62.  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. The Applicant also provided no particulars or specifics nor supporting documents on matters stated in the Supporting Affirmation and referred to in §49 above. They were only vague and bare assertions.

63.  Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation with anxious scrutiny, I am 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 very high standards of fairness.

64.  The Board found that the Applicant’s claims not credible for reasons set out in §§33-46 of the Board’s Decision.

65.  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 four 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 Board’s Decision is without fault. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

66.  The Applicant subsequently filed the Withdrawal Application on 13 June 2024 stating that her problem in her country had been resolved and she was safe in her country. She wanted to return to her country as soon as possible.

67.  The Applicant asked the court to close her judicial review case.

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

69.  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

70.  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 her 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