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HCAL 1944/2019
[2024] HKCFI 3185
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1944 of 2019
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BETWEEN
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Siti Rumani |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
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 10 July 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 13 June 2019 (the “2019 Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 3 April 2018 (the “Notice”) refusing her application for non-refoulement protection.
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the Court considered her leave application in respect of the Decision only.
Background
3. The Applicant is an Indonesian national. She last entered Hong Kong on 15 November 2015 to work as a foreign domestic helper. She overstayed in Hong Kong after her employment contract was prematurely terminated. She was arrested by the police for overstaying and referred to the Immigration Department on 20 February 2017. She made a non-refoulement claim by way of written significations dated 3, 7, 19 and 21 March 2017. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. Her application was rejected by the Director’s Notice. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of the Board’s Decision and the Director’s Notice.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim forms (the “NCF”) prepared by the Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she will be harmed or killed by a loan shark for being unable to repay the loan owing by her husband, if she is refouled to Indonesia. At the appeal hearing before the Board, she added another source of harm from her husband for her failing to repay the debt for him.
5. The Applicant, now aged 43, was born in Kabat, Banyuwangi, East Java, Indonesia. She is divorced but separated. Her three children and three siblings are living in Indonesia. She received formal education for nine years and had two and half years’ experience working as a masseuse in Bali and a domestic helper in Hong Kong.
6. In mid-2007, her husband borrowed 100 million Indonesian rupiah (IDR) from a loan shark at a monthly interest rate of 30% to purchase livestock for farming. The loan shark was very influential in her village. The Applicant and her husband were able to pay the monthly interest but could not repay the capital within a year as agreed.
7. In around 2009, the loan shark sent two to three subordinates to the Applicant’s home to demand payment. They beat her husband with bare hands. Her husband treated his injuries at home. He reported the assault to the police, but no follow-up action was taken. Thereafter, they visited her home once or twice a week to verbally threaten her and her husband and damaged their properties at home. The Applicant never sustained any injury.
8. In around 2010, the loan shark’s subordinates went to the Applicant’s home to forcibly evict her and her husband. They told them that the loan shark was taking over their property. After that, the Applicant and her husband separately relocated to different parts of Indonesia. The Applicant went to work in Bali for six months. For the next three years, she moved to different places in Indonesia to avoid the loan shark. Then, she came to work in Hong Kong in 2014.
9. She does not believe that the Indonesian authorities and police could protect her from the loan shark. She does not believe internal relocation would be viable because the loan shark could locate her throughout the country.
The finding of the Board
10. The Applicant testified before the Board. The Board found numerous and significant discrepancies between her evidence in her NCF and her testimony. Hereunder are some examples.
11. The Applicant gave the Board different accounts as to when the loan was taken out by her husband. She variously said it was taken out two years before she came to Hong Kong and two years before she divorced her husband in 2010 or 2011. Then, she said she had never divorced her husband but that they were separated. Finally, she said the loan was taken out in 2011. That is also inconsistent with the timeline of the action taken by the loan shark’s subordinates on the husband’s default in repayment. She explained the inconsistencies on the basis that her husband had taken out many loans. But, in her NCF, she mentioned only one loan taken out in 2007.
12. She told the Board that the subordinates came to her home three months after the loan was taken out because her husband defaulted in payment. But, in her NCF, she said the subordinates came to her home in around 2009, ie over a year after the loan was taken out. Her explanation for the contradictions was that her husband had taken out many loans.
13. She was not consistent about the amount of the loan. In her NCF, she said her husband borrowed 100 million IDR and the outstanding amount then owing was 350 million IDR; but she also told the Board that the original sum borrowed was 250 million IDR. When the discrepancies were put to her, she said she had no idea about details of the loan and not even the identity of the loan shark.
14. Her account about the visits by the loan shark’s subordinates is also inconsistent. In her NCF, she said that the loan shark’s subordinates assaulted her husband during their first visit in 2009. However, she told the Board that they had not assaulted her husband though there was some shouting and banging on the table.
15. Her account of the subsequent visits is vague, undetailed and confusing. She first told the Board that she and her husband had run away after the first visit because their house was taken over by the loan shark. Then she claimed her husband was beaten up and threatened with death. When pressed for details, she first said the subordinates threw things at her and later they beat her up as well.
16. The discrepancies cast serious doubts on the veracity of her evidence about the loan from the loan shark, the mistreatments claimed, and the confiscation of her property. The Board therefore rejected her evidence as incredible. It does not accept the Applicant’s husband had borrowed money from the loan shark and was unable to repay, which led to threats and physical harm to her or her husband and the confiscation of their home. It does not accept she was forced to go into hiding in Bali or anywhere else to avoid the loan shark and that the loan shark was looking for her.
17. The Applicant also told the Board for the first time that she was afraid that she would be killed by her husband as he had previously threatened to kill her for not helping him settle the loan. She also claimed that she had been subjected to domestic violence during her marriage. When pushed for details, she could not give any specific incidents of harm. Her failure to make a timely complaint about the threat and the lack of details about her allegations caused the Board to have significant concerns about the credibility and reliability of her evidence in this respect. The Board rejected her evidence about the threat from her husband and was not satisfied that there is a real risk that he would seek to harm her upon her return.
18. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds being considered. Hence, it dismissed her appeal against the decisions in the Notice.
Legal principles applicable to judicial review
19. 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 will 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[6].
Grounds for judicial review
20. The Applicant did not advance any grounds for review in her Form 86. In her supporting affirmation, she reiterated that her problem is still unresolved, and that her life would be in danger if she returns to her home country. After the legal principles in the preceding section had been explained to her, she confirmed that she had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for her. She reiterated that her problem in her home country is not yet solved and it is unsafe for her to return to Indonesia. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that he would face real harm or real risk of harm if returned to her home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Overall scrutiny
21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant incredible and rejected almost the entirety of her case. This is a finding fact solely within the realm of the Board. The Board analysed the evidence properly, tested it against common sense and inherent probability and gave reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the applicable grounds under the USM. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding is the result of error of law or procedural unfairness or the Decision is irrational. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law in the Decision or procedural unfairness in the making of the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving her fears and risks. The Decision is utterly without fault. The Applicant’s grounds are not reasonably arguable. The proposed judicial review has no realistic prospect of success.
Conclusion
22. For the above reasons, leave to apply for judicial review is refused.
Dated the 18th day of November 2024
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(Seline Sze)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 18/11/2024
Siti Rumani
Applicant’s ref. no:
Nil |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 18/11/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11210/18/4/220/I1274
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 401/18 (Formerly RBCZ/10665/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] [2018] HKCA 549
[2] 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
[3] 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”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at [14(1)]
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