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HCAL 361/2019
[2024] HKCFI 614
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 361 of 2019
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BETWEEN
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Komsiyah Bastomi |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
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 refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 30 January 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 25 September 2017 (the “Notice”).
2. A decision on her leave application was reached on 26 January 2024 and while the Form CALL-1 and Order were in the course of preparation, the Applicant filed an affirmation seeking to withdraw her leave application as she had obtained a dependent visa. Under those circumstances and as the affirmation contained no indication that she withdraws her leave application out of her free will and with full understanding of the consequences of her withdrawal, the Court considered it appropriate to issue the Order and Form CALL-1 as scheduled and not to make any order on her application to withdraw her leave application.
3. The Applicant is an Indonesian national. She last entered Hong Kong in January 1997 to work as a foreign domestic helper. She overstayed in Hong Kong after her contract was prematurely terminated. She was subsequently convicted of breach of condition of stay by taking up unapproved employment. On 26 October 2016, she raised a non-refoulement claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. 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
4. 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 claims that she would be harmed by her husband and a moneylender upon her return to Indonesia for refusing to help to repay a debt owed by her husband to the moneylender.
5. The Applicant, now aged 49, was born and raised in Tasikmadu Village in East Java Province, Indonesia. She received nine years of education up and has 19 years of experience working as a foreign domestic helper in Hong Kong.
6. She married her husband in 1992 and they lived in her parents’ home. Her husband had alcohol, drug and gambling problems and did not take up any employment. He abused her physically every week, such as kicking and slapping. She suffered minor injuries for which she did not seek medical treatment.
7. In 1993, the Applicant learned from the moneylender, who was a gang leader, that her husband had taken out a loan of 100 million Indonesian Rupees (“IDR”) at a monthly interest of 10,000 IDR.
8. In around 1996, her parents demanded her husband to move out from their home because they could no longer tolerate his behaviour. The Applicant moved with her husband to live with her in-laws while her son continued to stay with her parents. One day, after being assaulted by her husband, she went to look for her parents, but discovered that they had moved away with her son without telling her. She had since lost contact with her parents and her son.
9. Her husband asked her to stay with the moneylender as his mistress as repayment for his debt. She refused. She did not seek assistance from the police because both her husband and the moneylender had threatened to kill her if she did.
10. One day in 1996, the Applicant discovered that her husband had married another woman. She asked for a divorce but her husband refused. Thus, the Applicant decided to seek employment overseas as a means to avoid her husband and the moneylender. She obtained placement in Hong Kong in 1997. She remitted money to her husband for repayment of his debt twice, but stopped do so since 1999. Her husband kept asking her for money. Later, she changed her phone number to cut off contact with him.
11. The Applicant returned to Indonesia in 2001 and stayed with her parents-in-law. She did not meet her husband, but encountered the moneylender who demanded payment of her husband’s debt. She returned to Hong Kong. For fear of being harmed by the moneylender or her husband, she never returned to Indonesia. She claims that the Moneylender was well-connected and could locate her no matter where she moved in Indonesia. She also claims that the police would not help her without being paid a bribe.
The finding of the Board
12. The Applicant testified before the Board. Her testimony contradicted her evidence in the NCF. She said she did not know how much her husband had borrowed and that she had never met the moneylender before. This was inconsistent with her evidence she gave to the Director, namely that her husband borrowed 100 million IDR and she ran into the moneylender in 2001. She also told the Board that when she returned to Indonesia she stayed with her brother. That contradicts what she said in her NCF, namely that she lived with her in-laws. When confronted with the inconsistency, she said the account in the NCF was correct and that the discrepancies were caused by a lapse in her memory. The Board did not accept her explanation. The Board also rejected her explanation that she did not claim protection in the past 19 years since arriving at Hong Kong because she did not know how to seek protection. It found the inconsistencies seriously undermined her credibility and attached very little weight to her evidence.
13. Despite that, the Board assessed the Applicant’s claim on the basis of the case as she asserted. It found that the ill-treatment she suffered from the moneylender or her husband did not attain the minimum threshold of severity; that it was not inflicted with the requisite purposes nor by a public official or person acting in any official capacity as to constitute ‘torture’ under section 37U(1) of the Immigration Ordinance.
14. The Board also found on the basis of authoritative and credible country of origin information (“COI”) that despite problems in corruption, discrimination against women and impunity for serious human rights violations, the government have made great progress towards fighting corruption, protecting human rights, enforcing the law in a professional manner and to maintain public order. All these led to the existence of legal certainty and sense of justice. The Board also found there are non-governmental organisations in Indonesia which provide community support to women in need of assistance. It found adequate state protection would be available to the Applicant on her return and that with her education and working experience, internal relocation to other cities such as Jakarta or Bali to avoid the risk of harm would be viable.
15. On the basis of these findings, the Board further found the Applicant had not been tortured, that no government officials were involved in the alleged ill-treatment, that state protection would have been available had she actively sought it and internal relocation is a further viable option to avoid any possible risk of harm. It therefore found the Applicant is not entitled to protection under Torture Risk ground and BOR 3 ground.
16. The Board also found that her dispute with the moneylender and her husband were private in nature and had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore falls outside the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol. It therefore found the Applicant is not entitled to protection under Persecution Risk ground.
17. At the hearing before the Board, the Applicant confirmed that she had no fear of capital punishment from the Indonesian government. By reason of all of the above, her non-derogable right to life under BOR 2 will not be at risk of violation upon her return to Indonesia.
18. Hence, the Board dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
19. 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[5].
Grounds for judicial review
20. The Applicant did not advance any grounds of application in her Form 86. In her supporting affirmation, she said she was not satisfied with decision and asked to be allowed to stay in Hong Kong until her problem in Indonesia is resolved. In effect, she is challenging the finding of fact of the Board under the guise of judicial review. That is not permissible in an application for judicial review.
21. At the hearing, after the above legal principles had been explained to her, she confirmed she had no particular complaints about error of law, procedural unfairness or irrationality. She said she had married a Hong Kong citizen and is waiting for approval of her dependent visa. She was advised that approval or otherwise of her dependent visa is a separate issue from non-refoulement protection. 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.
Conclusion
22. Having rigorously examined the Decision, the papers 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; correctly identified the issues and observed a very high standard of fairness. Despite criticisms about her credibility, the Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found she was not entitled to non-refoulement protection under any of the four applicable grounds under the USM. It also found on the basis of authoritative and credible COI that adequate state protection and internal relocation are viable options to prevent, reduce or avoid any possible risk. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It is also exclusively within the province of the Board to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.
23. For the above reasons, leave to apply for judicial review is refused.
Dated 27th day of February 2024.
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(Allen LEE)
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 his 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 27/2/2024
Komsiyah Bastomi
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 27/2/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8734/17/10/64/I850
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2006/17 (Formerly RBCZ 13520/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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