RATNA LESTARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1035/2019

[2022] HKCFI 2340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1035 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 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 11 April 2019 (the “2019 Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 19 April 2017 (the “Further Notice”), rejecting her claim for non-refoulement protection under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”), ie risk of violation of the right to life.

2.  On around 3 December 2013, the Applicant, who is an Indonesian national overstaying in Hong Kong, raised a non-refoulement claim.  Her non-refoulement claim was first assessed on three of four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3] (the “first three applicable grounds”).  By a Notice of Decision dated 15 May 2015 (the “Notice”), the Director rejected her claims based on these three grounds.  The Applicant appealed.  Her appeal was dismissed by the Board by its decision dated 31 March 2017 (the “2017 Decision”).    

3.  On 3 April 2017, the Director invited the Applicant to submit additional information related to BOR2 risk by 18 April 2017.  The Applicant did not respond.  On 19 April 2017, the Director issued the Further Notice rejecting her claim under BOR 2 Risk ground. The Applicant appealed. 

4.  Before that appeal was heard, the Applicant applied on 10 April 2017 under HCAL 129/2017 for leave to apply for judicial review of the 2017 Decision relating to the first three applicable grounds.  Her application was refused by Deputy High Court Judge (“DHCJ”) Woodcock on 8 September 2017.  Her application for leave to appeal against DHCJ Woodcock’s decision out of time was dismissed by DHCJ Bruno Chan on 29 November 2018.  The dismissal of her claims based on the first three applicable grounds is final.

5.  The Applicant’s appeal against the Further Notice relating to her claim under the remaining BOR 2 Risk ground was heard by the Board on 7 November 2018.  Her appeal was dismissed by the Board’s 2019 Decision.  She now sought leave to apply for judicial review of that 2019 Decision.  In her Form 86 and supporting affirmation, she also mentioned about seeking judicial review of the various decisions relating to the dismissal of her claims under the first three applicable grounds.  As those claims had been finally determined in the 2017 Decision, those claims will not be considered in this application.

6.  The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to her by post to her address as stated in her Form 86 filed on 16 April 2019.  It has not been returned through the post.  She never informed the court of any change of address.  There is nothing to suggest that she had not received the letter or had moved.   Having considered the nature of the application and issues raised, the 2019 Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

7.  The Applicant did not testify before the Board at the hearing of her appeal against the Notice relating to her claims under the first three applicable grounds.  In its 2017 Decision, the Board assessed the Applicant’s claims under those three grounds on the basis of her account as she asserted in her 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, the basis of her claims is that if returned to Indonesia she would be killed by a moneylender (the “Moneylender”) for being unable to repay her loan owed to him.  The following is a summary of her account.

8.  The Applicant is an Indonesian national, born and raised in East Java, Indonesia. She is married and her family used to reside in Indonesia.  She had worked in Hong Kong as a foreign domestic helper before.  She last entered Hong Kong for employment on 16 January 2013.  She was arrested on 19 November 2013 for breach of condition of stay (ie overstaying) after her employment was prematurely terminated.  She was convicted and sentenced.

9.  The Applicant alleged that there was a flood in her home village in December 2012.  She and her husband borrowed a loan of IDR 300 million at the interest of 50% from the Moneylender to repair the house destroyed by the flood and to expand her husband’s business of selling food on the street.  Under the written loan agreement, the Applicant and her husband had to make monthly payments to the Moneylender.  The Applicant had to pay IDR 3 million per month but she did not know the amount her husband had to contribute or the number of payments she was required to make.

10.  About a month after taking out the loan, the Applicant went to Hong Kong on 16 January 2013 to work as a foreign domestic helper.  She remitted IDR 3 million to the Moneylender in January 2013.  After her contract was prematurely terminated in early February 2013, she was unable to pay.  Her husband did not make any repayment either but promised to start paying the Moneylender next month.

11.  The Moneylender went to the Applicant’s mother’s home on numerous occasions.  The Applicant was able to recall what happened during four particular visits.  The Moneylender made death threats to the Applicant through her mother during the visit in February 2013 and took away her mother’s television.  In March 2013, the Moneylender forcefully took the phone from her mother while she was talking to the Applicant and he made death threats to the Applicant directly over the phone.  He tried to gain entry to her mother’s home during the first visit in June 2013 but was unsuccessful.  In the second visit in June 2013, the Moneylender asked the Applicant’s mother to remind the Applicant to pay back the loan and took away her mother’s refrigerator.

12.  The Applicant’s last contact with her husband was in around July or August 2014.  She surmised that despite his repeated assurances to pay the Moneylender, her husband had never paid.  She learnt from her mother that the Moneylender had come to her mother’s house every month and harassed her as recently as one week prior to the hearing on 7 November 2018.

13.  The Applicant claimed that it would not be safe for her to live in her home village.  She did not believe she could relocate to big cities in Indonesia because she had no friends or relatives to support her there.  She did not believe the Indonesian police would protect her without a bribe.

The finding of the Board in its 2017 Decision

14.  The Board assessed the Applicant’s claim on the basis of the account as she asserted.  It noted that the Applicant only received verbal death threats from the Moneylender, but neither she nor her mother was assaulted.  The Board found that the Moneylender had no intention to kill the Applicant and the risk of feared ill-treatment that the Applicant would face upon her return to Indonesia is low and unlikely to materialize. Based on authoritative and credible Country of Origin Information (“COI”), the Board found that reasonable and sufficient state protection would be available to the Applicant[4]. It also found that with her age and working experience, it was reasonable to expect her to relocate to other areas outside her home village in Indonesia to avoid the harm from the Moneylender[5].

15.  The Board found her dispute with the Moneylender was private in nature and there was no evidence of any involvement or acquiescence by the Indonesian government.   Her dispute had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.  The Board held the Applicant had failed to establish that she would face any real risk of being subjected to Torture Risk, BOR 3 Risk or Persecution Risk upon her return.  Hence, it dismissed her appeal in relation to her claims based on the first three applicable grounds.  That Decision is final.

The finding of the Board in its 2019 Decision

16.  The Applicant’s account summarised in paragraphs 7 to 13 above also formed the basis of her claim under BOR 2 Risk ground.  The Applicant testified at the hearing of the appeal against the Director’s Further Notice relating to the BOR 2 Risk ground.  She admitted that she had not submitted any further information to the Director for the purpose of assessing her claim under BOR 2 Risk ground.  The Board rejected the Applicant’s evidence about the death threats made by the Moneylender.  It then assessed the Applicant’s claim primarily on the basis of its finding of facts in the 2017 Decision.

17.  The Board quoted the provisions of BOR 2(i) to (vi).  It found that BOR 2(ii) to (iv) is not engaged because the facts of the Applicant’s case did not involve the passing of any death sentence on her.

18.  As for BOR 2(i) Risk ground, as the Applicant admitted that she had not provided any additional information as required by the Director.  The Board referred back to her account as she asserted and its findings in the 2017 Decision.  Primarily on the basis of its finding in the 2017 Decision that the Moneylender had no intention to kill her[6] and that the risk of ill-treatment she would face on her return to Indonesia would be low[7], the Board found she will not face a real and personal risk of arbitrary deprivation of her life and hence dismissed her appeal. 

19.  It should be noted that though the Board made an adverse finding against the Applicant and rejected her evidence about the death threat uttered by the Moneylender, the Board actually ignored that adverse finding and assessed the Applicant’s claim on the basis that the threat had been uttered but the Moneylender had no intention to execute that threat.

The legal principles applicable to judicial review

20.  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 in a judicial review will only 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[8].

Grounds for judicial review

21.  The Applicant advanced eight grounds of judicial review in her Form 86.  The first seven grounds are about the relief sought and other irrelevant matters which have no bearing to her application, such as an order for costs and an order that the Applicant’s own costs be taxed pursuant to Legal Aid Regulations; but the Applicant is not legally aided in this application.  She also asked for an oral hearing, if leave is not granted on paper; but she did not attend the hearing despite having been informed that her application will be determined on paper if she did not attend.

22.  The Applicant’s eighth ground, which actually is her sole ground, is a complaint about the Board’s breach of procedural fairness in the four areas:

(1)   the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)   the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)   the Board failed to meet the greater care and duty owed to a self-represented claimant.

23.  The arguments and facts set out in her supporting affirmation revolve around procedural unfairness in the following respects:

(1)   lack of legal representation (paragraphs 4 and 6);

(2)   lack of time for preparation for the hearing (paragraphs 3 and 6);

(3)   lack of language assistance (paragraph 4 and 10);

(4)   the Board’s failure to notify her of the outcome of the appeal (paragraph 5);

(5)   the Board’s reliance on outdated materials (paragraph 8);

(6)   no screening interview for BOR 2 Risk ground (paragraph 9); and

(7)   the Board arrived at the wrong decision (paragraphs 7, 12 and 13).

The paragraph numbers in parenthesis refer to the paragraph numbers in the Applicant’s supporting affirmation.  Paragraphs 1, 2, 10, 11 14 and 15 in the supporting affirmation contain comments and relief sought.  These arguments are treated as arguments and further and better particulars in support of the grounds raised in the Form 86.  They are dealt with below.

Points (1), (2) and (3): lack of legal and language assistance and time for preparation

24.  These points are all inter-related and may be dealt with together.

25.  The Applicant was legally represented up to the conclusion of the screening interview, but not at the appeal before the Board.  In Re Zafar Muazam[9], Re Zunariyah[10], Re Zahid Abbas[11], Re Tariq Farhan[12], and Re Lopchan Subash[13], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[14] nor the judgment of FB v. Director of Immigration[15] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

26.  The Applicant had the benefit of legal representation in presenting her case to the Director.  All the benefits that legal representation could have afforded her were contained in her written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite she was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her were before the Board.  Taking a global view of the circumstances, the Applicant suffered no prejudice due to lack of legal representation before the Board.

27.  The Applicant said that the appeal bundle is in English.  She did not have sufficient time to prepare for the hearing and did not have the means to hire the services of an interpreter.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[16], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit as and when she requires.  She has to find assistance herself from among her friends and her ethnic community.  Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing she has access to interpretation services.

28.  The Applicant complained that the appeal bundle was served on her just a few days before the hearing including an intervening weekend.  She did not have sufficient time to prepare for the hearing before the Board.  It must be noted that the appeal bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI.  She knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service.  She knows what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation.  The record had been read back to her in her own language and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, she has to find assistance herself from among her friends and her ethnic community. 

29.  The single most important document in the appeal bundle is the Further Notice which contains the reasons why the Director refused her BOR 2 Risk claim.  It was issued on 19 April 2017.  The oral hearing was conducted 7 November 2018.  In between, she had more than one and half years to find out what that Further Notice is about, if she was at all serious in pursuing her non-refoulement claim.  As for the other documents, except for the COI, the information therein was provided by her, although reduced into English.  She was familiar with the information.  Viewed in that context, the time was short, but not inadequate as to amount to procedural unfairness.  She should have exercised due diligence in preparing her appeal before the Board than to indulge in the leisure of the weekend and then complain about lack of time and procedural unfairness.  If she need more time to prepare for the appeal, she could have raised that with the Board, but she did not.

30.  The Applicant complained that due to lack of understanding on what will happen in the hearing and since the hearing bundle was not provided earlier or with interpretation, she was confused in terms of what was happening.  If she was genuinely confused, she should have sought assistance from the Board or asked for an adjournment to enable her to prepare for the hearing.  She did not.  It lies ill in her mouth to attempt to overturn the result of the hearing on this ground.

Point (4): The Board’s failure to notify her of the outcome of the appeal

31.  This complaint is not verified.  Even accepting that the Applicant had requested the Board to notify her of the outcome of the appeal, the failure had no bearing on the procedural fairness or otherwise of the non-refolement proceedings.  What had been decided by the Board had been decided.  An early notification could not change the Board’s decision.  There is no evidence that the Applicant suffered any prejudice as a result of the failure.  She was able to lodge her application for leave to apply for judicial review in time.

Point (5): The Board’s reliance on outdated materials

32.  The Applicant complained that the COI relied on by the Board are not officially recognised and are hearsay or outdated.  Hence, the 2019 Decision based on such information is just groundless speculation.  Insofar as the 2019 Decision is concerned, the Board did not refer to any COI.

33.  As for the 2017 Decision, the COI relied on by the Director and the Board are all from credible and official source, including Country Report on Human Rights Practices of Indonesia 2013, published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; and reports from the International Organization for Migration, The 7^th Workshop of the Inter-Parliamentary Forum on Security Sector Governance in Southeast Asia, the Indonesian national Police, and Reuters.  Other than a bald assertion of unreliability and hearsay, the Applicant did not challenge the accuracy of these COI and provided no particulars as to what are untrue, not to mention her failure to provide any publication contradicting these COI.  The court considered this argument totally groundless.

Point (6): No screening interview for BOR 2 Risk ground

34.  The Applicant’s claims under all four applicable grounds under the USM, including BOR 2 Risk ground, were explored at the screening interview.  There is no practice or requirement that a separate screening interview must be conducted in relation to BOR 2 Risk ground. The Court rhetorically asked what information could the Applicant have provided at such a screening interview if she declined providing any additional information despite the Director’s specific invitation to her to do so.  There is no substance in her argument.

Point (7): The Board arrived at the wrong decision

35.  The Applicant complained that the Decision was wrong because she had answered the questions honestly and that the Board should not have rejected her claims.  This argument is plainly a challenge of the Board’s finding of fact.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. 

36.  Though not so raised by the Applicant, in all fairness to her, the Court noted that arguably there is some problem in logic with the Board’s conclusion.  As mentioned in paragraphs 16 to 19, the Board rejected the Applicant’s evidence about the death threats made by the Moneylender during his visits in February and March 2013 to her mother’s home.  Instead of adhering to that finding and held that there was no threat to her life, the Board held that the Moneylender had no intention to carry out the threats to kill the Applicant.  However, this error operated to the Applicant’s advantage as the Board had to do some further mental gymnastics to draw the inference from the circumstances that despite the threats the Moneylender had no intention to kill.  In any event, that finding is also a finding in the 2017 Decision which is binding.  Thus, the error had no effect on the Board’s 2019 Decision.

Conclusion

37.  Having rigorously examined the 2019 Decision, the Applicant’s grounds for application, 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 BOR 2 Risk ground under the USM and applied them to the facts.  It was on that basis that the Board found that there was no factual basis to support the Applicant’s claim for non-refoulement protection under that ground.  

38.  The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court in a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Despite the blemish mentioned in paragraphs 19 and 36 which did not affect the correctness of the 2019 Decision, there were no errors of law or procedural unfairness in its Decision.  The Board observed a very high standard of fairness.  Its 2019 Decision did satisfy the enhanced Wednesbury test.  Having considered her grounds for application, the Court was satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.

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] Paragraph 30 of the 2017 Decision

[5] Paragraph 34 of the 2017 Decision

[6] Paragraph 19 of the 2019 Decision and paragraph 27 of the 2017 Decision

[7] Paragraph 20 of the 2019 Decision and paragraphs 19 to 27 of the 2017 Decision

[8] [2018] HKCA 524 at para 14(1)

[9] cacv 2/2018, (unreported) 23 March 2018

[10] [2018] HKCA 14

[11] [2018] HKCA 15

[12] [2018] HKCA 17

[13] [2018] HKCA 37

[14] (2004) 7 HKCFAR 187

[15] HCAL 51 of 2007

[16] CACV 78/2018