MAYANGSARI BAIQ RENI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 350/2022

[2024] HKCFI 3582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 350 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 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 Mayangsari Baiq Reni (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 28 April 2022 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 30 August 2021 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

2.  The DOI Decision was in Chinese and the Board’s Decision was in English. The Applicant completed the Form 86 herein (“Form 86”) in English without interpretation. She filed her English supporting affirmation (“Supporting Affirmation”) with assistance of an interpreter. On 9 September 2024, the Applicant filed another affirmation in mixed languages of Chinese and English without assistance of interpreter applying to cancel her intended judicial review (“Withdrawal Application”). The Board noted in the Board’s Decision that the Applicant did not speak or write any language other than Indonesian. (§37 of the Board’s Decision) As the Applicant chose to file her application papers in English, I decided to issue this judgment in English.

Background of the Applicant

3.  The Applicant is an Indonesian. She was born on 2 June 1996 in Nusa Tenggara Barat, Indonesia.

4.  She received about 9 years of education. She worked for about 4 months in 2011/2012 as a saleslady for an apparel shop and came to Hong Kong in February 2020 to work as a foreign domestic helper. She was permitted to stay and work as a foreign domestic helper until 3 February 2022 or two weeks after termination of her employment, whichever the earlier.

5.  The Applicant’s employment contract in Hong Kong was prematurely terminated on 28 February 2020 but she did not leave by 13 March 2020 and thus overstayed in Hong Kong since 14 March 2020. She was arrested by the Hong Kong police on 28 October 2020 and referred to the Immigration Department on 31 October 2020 for further investigation.

The Claim

6.  The Applicant claimed that her father had borrowed IDR 15 million (“Loan”) from a creditor (“Creditor”) in 2019 with the Applicant acting as guarantor. She did not remember the interest chargeable on the Loan.

7.  The Applicant did not know anything about the background of the Creditor.

8.  As the Applicant had lost her job in the first month of her employment in Hong Kong, she did not make any repayment for the Loan.

9.  The Creditor came to the Applicant’s home 3 times since June 2020 to chase for payment. The Creditor did not harm the Applicant’s family members but threatened to kill her upon her return to Indonesia.

10.  Neither the Applicant nor her family members made any report to the Indonesian police. They believed that as their problem involved only a private debt, the Indonesian police would not take any actions.

11.  The Applicant claimed that she would be harmed or killed by the Creditor if she were to return to Indonesia because she was unable to repay the Loan.

Procedural history

12.  The Applicant was arrested by the Hong Kong police on 28 October 2020 for overstaying in Hong Kong. By a written representation of 31 October 2020, the Applicant lodged the Claim.

13.  The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR”) (“BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the BOR (“BOR 3”); 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.

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

15.  On 16 May 2022, the Applicant filed the Form 86 seeking leave for judicial review of the Board’s Decision. The Applicant named the Board as proposed respondent and interested party in the Form 86.

16.  The Applicant filed the Supporting Affirmation also on 16 May 2022.

17.  On 9 September 2024, the Applicant filed the Withdrawal Application. The Applicant asked to cancel her intended judicial review application.

18.  Subsequently, the Director informed the court that the Applicant had been removed in October 2024. As such, I decided to deal with the Applicant’s application for leave for judicial review and the Withdrawal Application by way of paper disposal.

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 there would be any real and substantial risk of the Applicant being harmed or killed by the Creditor upon her return to Indonesia.

20.  The Director noted that the Creditor did not actually assault or injure the Applicant or her family members on all occasions. The Creditor only chased for repayment of the Loan and verbally threatened to kill the Applicant. This showed that the Creditor did not really intend to kill or seriously harm the Applicant. The Creditor only wanted to press the Applicant to repay the Loan.

21.  On the issue of state protection, the Director, after considering the relevant country of origin information (“COI”), found that reasonable state protection would be available to the Applicant if she were to return to Indonesia.

22.  Although the Applicant asserted that the Indonesian police would not give her any protection, this was unsupported by any evidence. COI showed that the Indonesian government would take actions against corrupt police and government officials. Her dispute with the Creditor originated from the Loan and it had nothing to do with the police or the government authorities. There was no basis for the Applicant to claim that the police would fail to protect her.

23.  The Director further found that internal relocation would be viable. If the Applicant moved to Bali or Jakarta, 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.

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

The Board’s Decision

25.  The Board found that the Applicant’s evidence in relation to the Creditor was shaky, sketchy, minimalistic, evasive and inconsistent.

26.  In §§75-95 of the Board’s Decision, the Board made a detailed analysis of the Applicant’s evidence and came to the conclusion that the Applicant was not a credible witness and that the core elements of her evidence were devoid of credence.

27.  The Board did not accept that the Applicant’s father had borrowed the Loan from the Creditor. The Board found that the Creditor was a fictitious character and it was not true that the Creditor and her subordinates had gone to the Applicant’s home in Indonesia to chase for payment and threatened to kill the Applicant.

28.  On basis of the COI, the Board found that the Applicant would be able to access to reasonable state protection if she were to be returned to Indonesia.

29.  The Board also considered that internal relocation was a reasonable and practicable option to the Applicant. The Applicant might consider Jakarta and many other resettlement options available.

30.  The Board did not consider that the Applicant faced risk of life danger contemplated under BOR 2 or there was a real or genuine risk of torture or ill-treatment contemplated under BOR 3 by anyone if she were sent back to Indonesia.

31.  The Applicant’s claim was not linked to race, religion, nationality, membership of a particular social group, or political opinion. The Board found that the Applicant did not have a well-founded fear of persecution in Indonesia.

32.  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

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

34.  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”.

35.  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

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

37.  In the Supporting Affirmation, the Applicant only stated that: “I don’t want go back Indonesia. Im [sic] very scared if I go back my country because of my loan shark, my life not savety [sic] in Indonesia. They will kill me if I’m in Indonesia because I can’t pay my Debt, I don’t have money to pay the Debt. Please save my life, please give me live in Hong Kong because only in Hong Kong I feel savety.” She then exhibited a copy of the Board’s Decision to the Supporting Affirmation without other supporting documents.

38.  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.

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

40.  The Board found that the Applicant had never been subjected to any danger posed by the Creditor in Indonesia and she would not be subjected to any such risk if she were to be returned to Indonesia. The Board also found that reasonable state protection was available and internal relocation was viable to the Applicant. I note that there were typos in §88 of the Board’s Decision on the Loan amount. However, I am of the view that the typos did not affect the decision of the Board.

41.  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 proposed judicial review is not reasonably arguable.

The Withdrawal Application

42.  The Applicant subsequently filed the Withdrawal Application on 9 September 2024 stating that she wanted to cancel her judicial review case.

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

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

45.  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

46.  In the premise and having considered the Board’s Decision and the DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

47.  As the court was notified by the Director that the Applicant had been removed from Hong Kong and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her address stated in the Withdrawal Application with copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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