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HCAL 7/2019
[2023] HKCFI 1002
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 7 of 2019
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BETWEEN
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Etik Solekah |
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:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 2 January 2019 for leave to apply for judicial review of a decision dated 5 June 2018. In the Form 86, no administrative body is named as the proposed respondent and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) is named as the interested party. Upon enquiries with the Board and the Immigration Department, it was discovered that no decision bearing such a date had been made by the Board or the Director of Immigration (the “Director”). The enquiries also revealed that the Applicant had made a non-refoulement claim which was dismissed by the Director via his Notice of Decision dated 23 March 2018 (the “Notice”). She appealed to the Board against that Notice. Her appeal was dismissed by the Board’s decision dated 18 September 2018 (the “Decision”). In that factual matrix, it is obvious that the Applicant’s intention is to seek judicial review of the Decision of the Board refusing her appeal against the decision of the Director in his Notice. Accordingly, leave is granted to amend the Form 86 by making the Board the proposed respondent, the Director the interested party and the Decision the decision in respect of which relief is sought.
2. The Applicant is an Indonesian national, now aged 39. She last entered Hong Kong on 3 May 2011 to work as a foreign domestic helper. Her employment was prematurely terminated. She became an over-stayer since 21 May 2011. She was arrested on 24 November 2017 for overstaying. On 2 February 2018, she raised a non-refoulement claim.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the United Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. As mentioned above, her claim was dismissed by the Director’s Notice and her appeal against the Notice was dismissed by the Decision. She now seeks leave to apply for judicial review against 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, the record of her screening interview in the presence of her lawyer. In gist, she claimed that she would be harmed or killed by a loan shark, Amir, for failing to repay her mother’s debt due to him.
5. The Applicant was born in Java Timur, Indonesia. She has completed ten years of formal education and has previous experience working as a domestic helper in Malaysia before coming to Hong Kong. Her parents are deceased and she has one brother living in Indonesia.
6. The Applicant claimed that, her father was diagnosed with liver cancer in August 2012 and her mother borrowed 80 million Indonesian Rupiah (“IDR”) from a loan shark called Amir for medical expenses for her father. Her mother verbally agreed to hand over the title deed of the family home to Amir as collateral and to pay him everything the Applicant earned in a month. The Applicant’s father died in late 2013. Her mother was unable to repay the loan. Thus, she sold a plot of rice fields and some livestock to raise about IDR 20 million as partial repayment to Amir.
7. One day in 2014, Amir and his men came to the mother’s home threatening to kill her and to force the Applicant to return to Indonesia if she refused to clear the debt. They beat her mother causing a laceration on her back. Out of fear, her mother gave Amir the Applicant’s telephone number in Hong Kong.
8. In the following week, Amir telephoned the Applicant demanding her to repay the loan or to return to Indonesia to marry him, otherwise he would kill her. In the two months that followed, Amir continued calling her two to three times a day. The Applicant changed her mobile number to avoid further calls.
9. Then, Amir and his men began visiting her mother’s home. They demanded her mother to leave her home as the loan remained unpaid. Two days later, Amir and his men came to threatened her mother again. The Applicant’s mother gave Amir the Applicant’s new phone number thinking by so doing Amir would allow her to stay in the family home. Amir did not and slapped her. Out of fear, the Applicant’s mother fled to a neighbour’s house. Then, she suffered a stroke and passed away in January 2015. The house was taken by Amir thereafter.
10. Amir continued harassing the Applicant three to four times a day or a week repeating his threat and demand. The Applicant could no longer stand the harassment and changed her phone number again. Nothing eventful occurred since until October/November 2017, when she received a text from Amir saying that he would definitely kill her. Amir continued sending her at least one message a day repeating the threat.
11. The Applicant also claimed to have a dispute with her brother about her return to Indonesia and use of the family home. But she made no allegation of threats from her brother. That dispute is irrelevant.
The finding of the Board
12. The Applicant testified before the Board. But the Board found several significant inconsistencies in her evidence which cast doubt on the reliability of her evidence.
13. The gist of the Applicant’s case as stated in the NCF is that her family was unable to afford her father’s medical expenses and borrowed IDR 80 million from Amir on condition that her mother was to hand over the title deed of the family home to him; and after her father’s death, her mother sold the land and livestock to partially repay Amir. However, the Applicant testified before the Board that her family had in fact sold the family home to defray her father’s medical expenses and when that was not enough her mother borrowed from Amir. She told the Board that the land which was sold was to repay a loan to their uncle and it was a different piece of land sold to repay Amir. The Applicant explained that she did not give these details in the NCF because her friend told her that she just needed to tell the details to the Board only. The Board considered the explanation unconvincing.
14. The Applicant’s evidence is also inconsistent about the size of the loan. In the NCF, she claimed that the loan from Amir was IDR 80 million which is equivalent to approximately HK$42,000. However, she told the Board that her mother had in fact borrowed twice from Amir in the region of over IDR 110 million, which is equivalent to approximately HK$60,000.
15. The Board was further concerned about the terms of the loan. The Applicant’s evidence at the hearing was that the loan shall be repaid otherwise Amir would take the family house and she would have to marry him. However, in the NCF the demand to marry Amir did not arise until several years after the loan was taken out.
16. The Board considered the Applicant’s evidence vague, unconvincing and unsupported by documentation. These concerns, including the lack of effort by the Applicant to obtain supporting documentation undermined the veracity of her claim.
17. The Board was also concerned that there was a delay of some six years since the Applicant overstayed in Hong Kong before she raised her non-refoulement claim. The delay further undermined the veracity of her claim of being harmed if returned to Indonesia.
18. In light of its finding above, the Board did not accept that the Applicant’s claim that her mother had borrowed money from Amir. For that reason, it also did not accept that the Applicant was ever targeted for harm by Amir. The Board was therefore not satisfied that the Applicant would face a real chance of harm of any kind in Indonesia in the reasonably foreseeable future for any of the reasons claimed.
19. For the above reasons, the Board was not satisfied that the Applicant has established the factual basis in support of her claim for non-refoulement protection under any of the applicable grounds under the USM based. It was not satisfied that there is any genuine or substantial risk of the Applicant being subjected to any of the proscribed harm on her return to Indonesia. Hence the Board dismissed her appeal.
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 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[5].
Grounds for judicial review
21. The Applicant did not advance any grounds for judicial review in the Form 86. In her supporting affirmation, she repeated her fear of harm from the loan shark upon her return to Indonesia. The essence of her complaint is that she disagreed with the finding of the Board that it is safe for her to return to her home country. In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if refouled. That is not permissible unless that finding involved errors of law, procedural unfairness or irrationality.
Conclusion
22. In the absence of specific grounds of application, the Court in an application for judicial review 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. 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. The Board found the Applicant incredible on the crucial issues about the existence of the loan and her fear of harm from the loan shark upon her return to Indonesia. It was on that basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, leave is granted to amend the Applicant’s application for leave to apply for judicial review and her leave application as amended is refused.
Dated 21st day of April 2023.
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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 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 21/4/2023
Etik Solekah
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 21/4/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11056/18/4/66/I1240
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 856/18 (Formerly RBCZ 10093/18)
Department of Justice,
Senior Assistant Law Officer
(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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