RENI IKA AUTRIA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL424/2017

[2018] HKCFI 653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 424 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is an Indonesian national who came to Hong Kong as a foreign domestic helper in 2010 for the first time.  She came again from January 2011 to October 2011.  Her contract was terminated in October but she did not leave Hong Kong as required and overstayed since 6 October; she then lodged a non-refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 23 November 2016.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 15 May 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 18 July 2017.  She did file an affirmation but it contained little detail therefore a hearing date was set down and a notice of that date was sent to the address supplied by the applicant but she did not appear on 13 December 2017.  The telephone number supplied by the applicant was also the wrong number.  I therefore consider her application on the papers.

3.  The basis of her claim was that if she were to return to Indonesia she would be forced to marry an elderly loan shark because her father had borrowed money from him and it was still outstanding, if she refused she would be killed.  Both the Director and the adjudicator of the TCAB set out her evidence and claim in detail in their decisions therefore, I do not need to repeat it here.

4.  The applicant was born in 1984 into a farming family and received nine years of education before she worked as a domestic helper in West Java and then Singapore.  She then came to Hong Kong several months in 2010 before returning to Indonesia and coming back again in 2011.  Her claim was that when she returned home after her first contract in Hong Kong her father told her he had borrowed 150 million rupiahs from a loan shark who had requested her hand in marriage if her father did not repay the loan.  The applicant refused and her father said that she would have to repay it if she refused.  She then returned to Hong Kong to earn money to repay it in 2011.

5.  In June 2011 she was able to send her father HK$2,000 a month to pay the debt but in October 2011 her employment contract was terminated.  The loan shark called her and demanded payment or else she must marry him.  He said if she refused, he would kill her and her father.  She then decided to remain in Hong Kong illegally.  In 2013 her father told her that the loan shark had taken his motorbike and damaged their property.  The applicant changed her phone number to avoid contact with her father who insisted she come home to marry the loan shark.  In 2016 her cousin told her that the loan shark was still harassing her father every month.  The applicant believes she cannot relocate to other places in Indonesia because the loan shark is very powerful and would be able to locate her anywhere.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   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, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out her claim and her evidence at the appeal hearing.  He set out his questions that he asked her about her family background and her father’s loan and her answers.  It was abundantly clear she was in the dark and could provide no detail as to why he borrowed such a large sum of money as a farmer nor did she see the evidence of what he spent it on.  Quite rightly the adjudicator questioned her lack of knowledge and even why she did not ask.

8.  Her evidence was that despite her entire life and future hanging in the balance because of a deal made by her father, she had no idea why he borrowed money and why her father would deliberately place her life at risk and nor did she ask or try to find out.  This was the case despite her being unemployed at the time and not in a position to repay the loan or send money home.  The adjudicator doubted her credibility.

9.  The adjudicator set out his reasons why he doubted her credibility in detail in his decision.  He set out her answers to his concerns in detail.  He discussed in detail why she made no complaints to anyone in authority and found her explanation weak.  He discussed relocation with her and noted her reasons for not being able to live anywhere else was because she had no relatives anywhere else but that would apply equally to Hong Kong.  Ultimately the adjudicator was not satisfied she was a reliable witness; he did not find she was a genuine claimant.

10.  As a result of his finding, the adjudicator did not consider there to be anything which created a risk of severe pain being inflicted on the applicant should she return to Indonesia.  Therefore, there are no substantial grounds for believing she would be in danger of being subjected to torture if refouled; her torture risk claim failed.

11.  As far as the BOR 3 risk is concerned, the adjudicator was not satisfied the applicant faced a genuine and substantial risk of being subjected to torture or CIDTP if refouled to Indonesia.  The adjudicator was equally unconvinced she faced a risk of a violation of her rights under BOR 2.  Therefore, her BOR 2 and 3 risk claim failed.

12.  The adjudicator did not find the applicant had a well-founded fear of being persecuted for a Refugee Convention ground or any other reason; her persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

13.  The applicant did file an affirmation but the grounds are not clear nor substantiated. In her Form 86 she names the TCAB as the proposed respondent but in the affirmation she seems to challenge the decision of the Director.  In any event the grounds are that there is no reasonable basis for rejecting her credibility.  There has been a failure to consider the concept of extended state acquiescence.  There has been a failure to consider the COI reports and a proper consideration of internal relocation.  Lastly, it is a procedural irregularity that the decision‑maker was a different person from her interviewing officer.

14.  There are no particulars to any of her grounds nor are they substantiated.  I will deal with them on the basis that they refer to the decision of the TCAB; after all it was the adjudicator who rejected her claim on credibility.  I am satisfied he gave full and compelling reasons for rejecting her claim on credibility.  As a result of that finding, there was no reason or necessity to consider the concept of extended State acquiescence or the COI information.  There was no need to go into great detail or analysis as to the viability of internal relocation either.  It made no difference to the TCAB who interviewed the applicant previously.  There are no merits in her grounds.

15.  I have considered with rigourous examination and anxious scrutiny the papers of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claims and evidence carefully. I do not find any ground that shows there was an error of law by him nor a failure to adhere to a high standard of fairness.  I see no evidence of procedural unfairness on his part.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

16.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave 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