EVI SUTRIYANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1589/2019

[2024] HKCFI 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1589 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;

1.   Extension of time to apply for leave for Judicial Review be refused; and

2.   The application for leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (the “Board”) dated 4 March 2019 (the “Decision”) dismissing the appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 March 2018 (the “Notice”).

2.  She had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered her application may be justly determined on paper without an oral hearing.   

3.  The leave application was filed three months and one week after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, the leave application was made one week out of time.  Leave to file the leave application out of time is required.

4.  In AW and Director of Immigration and William Lam[1], the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event. Usually, the first three factors are most crucial and determinative.  If the delay was short, the other factors, particularly merits would carry more weight in deciding whether to grant leave.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two.  The Applicant gave no explanation for the delay.  For expediency reasons, the Court went straight to merits instead of taking time to ask the Applicant for explanation.

5.  The Applicant is an Indonesian national.   She started working in Hong Kong as a foreign domestic helper since December 2009.  She last entered Hong Kong to work as a foreign domestic helper on 26 September 2014.  She was arrested on 16 April 2015 for taking up illegal employment in a restaurant and was subsequently sentenced to two months’ imprisonment for breach of condition of stay.   On 7 May 2015, she raised a non-refoulement claim by written representation.  Later, she married a Hong Kong resident on 16 October 2017 and applied for dependent visa.  That application was pending at the time of the appeal before the Board.

6.  In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5].  Her claim was dismissed by the Director’s Notice.  Her appeal against the Notice was dismissed by the Decision of the Board.  She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

7.  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 an Indonesian woman called Wati upon her return to Indonesia because of her inability to repay an outstanding loan owed to Wati.

8.  The Applicant, now aged 41 was born in Palembang, South Sumatra Province, Indonesia.  She received about 10 years of education and had 9 years of working experience as a foreign domestic helper.  In 2014, while working in Hong Kong, she was introduced by her friend Linda to Wati.  Wati and Linda were both Indonesian foreign domestic helpers working in Hong Kong.  Wati was notorious for lending money to Indonesian domestic helpers in Hong Kong at a high interest rate.  Through Linda, the Applicant entered into an agreement to borrow HKD 60,000 at an interest rate of 30% per annum from Wati to help her start a business in Indonesia. Linda gave her a loan agreement to sign and then passed the signed agreement to Wati.  Linda collected the money from Wati on her behalf.  After receiving the money, the Applicant used it for her business in Indonesia which was operated by her father.  The business failed and she could not repay Wati.   Since November 2017, she started receiving death threats directed at her and her family from Wati over the telephone.  She had never met Wati and did not have her telephone number.

9.  The Applicant said she could not report her case to the police because she did not have a copy of the loan agreement or any evidence to prove the existence of the loan.  She was afraid of returning to Indonesia because she and her family would be killed.  She also expressed doubts over the adequacy of protection by the Indonesian authorities and claimed that internal relocation would not be a safe option, as she believed Wati could locate her anywhere in Indonesia through her network.  She is not sure if Wati is still in Hong Kong or has returned to Indonesia.

The finding of the Board

10.  The Applicant testified before the Board.  The Board noticed several significant inconsistencies between her evidence in the NCF and her testimony before the Board.  First, in the notice of appeal and her testimony before the Board, the Applicant claimed that she borrowed from her friend Wati, but this alleged friendship had never been mentioned in her NCF or the screening interview.  When asked for more details about the moneylender, the Applicant said she had never met Wati or had any details about her (whom she previously called “her friend”).  She said she borrowed through Wati’s underling called Linda who is no longer in Hong Kong.  Second, in the NCF, the Applicant said after receiving the loan, she used it to start her business in Indonesia.  But she told the Board that she never received the money as Linda had absconded with the money.  When confronted with the inconsistency, she only reiterated that she never received the loan and she could not remember what she had written in her written statement, though she confirmed it would have been read back to her before she signed.  Third, she told the immigration officer at the screening interview that she had made the last repayment in April 2015 and was saving up money to repay Wati in one go; but she told the Board that she would never repay as she had never received the loan.  After the inconsistencies had been put to her, the Applicant confirmed that she had not repaid anything towards the loan.

11.  The Board found the Applicant’s explanation in relation to the loan contradictory, inconsistent and her evidence was confusing.  Having regard to the internal coherence of her statements, their consistency with each other and the relevant level of detail she was able to provide, the Board found the Applicant was not a witness of truth and that she fabricated or exaggerated the fear she claimed she had received from Wati.  The Board considered this is not a case in which the centrepiece of her claim stands despite the exaggeration, uncertainty and untruthfulness of her evidence.  The Board also found it incredible that her husband, a Hong Kong permanent resident, is unaware of the alleged danger from Wati.

12.  Giving her the benefit of the doubt, the Board considered the Applicant’s case as stated in her NCF is probably the most accurate of her claim in relation to the loan.  It accepted that she borrowed money for her business in Indonesia but found that she fabricated a story about Linda absconding with her money to “exaggerate her plight” of not being able to repay.  As the Board had significant problems with the Applicant’s evidence, her credibility and veracity, it placed no weight on her claim that the moneylender would follow her to her home and harm her or her family.  Thus, while the Board accepted that the Applicant may have taken out a loan and may still owe some money under the loan, it did not accept the Applicant’s evidence that she had been threatened with harm, especially a risk of harm which reaches the high threshold and minimum level of severity necessary to be considered torture.  It also doubted the genuineness of her fear as she did not even know if the moneylender has returned to Indonesia or is still in Hong Kong.

13.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board found the Applicant had failed to establish the factual basis to support her claim for protection under any of the four applicable grounds under the USM.  In particular, in relation to the Torture Risk ground, it is not the Applicant’s claim that Wati is in any way acting in an official capacity.  In respect of the Persecution Risk ground, the alleged fear of ill-treatment is not one which arose on account of a Convention reason protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion.  It therefore dismissed the Applicant’s appeal against the Director’s Notice.

The legal principles applicable to judicial review

14.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

15.  The Applicant did not put forward any grounds of application in her Form 86 or supporting affirmation.    In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and irrationality in the Decision.   

Discussion

16.  Having rigorously examined the Director’s Notice of Decision, the Board’s Decision and the evidence with anxious scrutiny, the Court is 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 and quoted relevant legal precedents in support of its Decision.  The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice.  It correctly identified the factual and legal issues involved in the claim. 

17.  The Applicant’s claim is founded on her fear of harm by Wati or the moneylender. Despite the unsatisfactory state of the Applicant’s evidence, the Board gave generous allowance for her credibility.  It could not accept all the different versions of her case which are inconsistent, contradicting and confusing.  It proceeded on the basis of the version of her case which the Board considered most probable.  It assessed the Applicant’s claim on the basis that she was subjected to some threat because of her inability to repay the loan, but found the risk of harm does not reach the high threshold and minimum level of severity necessary to be considered torture.  These are finding of fact and finding of credibility of witness which are solely within the realm of the Board to make and which the court in a judicial review may not interfere save for errors of law, procedural unfairness and irrationality.  It was on the basis of those facts that the Board found the Applicant is not entitled to protection as a matter of law under any of the applicable grounds under the USM.  This is a mixed finding of fact and of the law.  Insofar as it is a finding of law, it is absolutely correct.  The Court could detect no error of law in the Decision. The Board observed a very high standard of fairness.  Its Decision does satisfy the enhanced Wednesbury test.  This Court is satisfied that the Applicant’s claim is not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.

Conclusion

18.  As there is no merits in the intended judicial review, leave will not be granted for the leave application to be filed out of time, albeit by just one week.  Accordingly, the application for leave to apply for judicial review is 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