HCAL 1150/2022
[2023] HKCFI 1042
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1150 of 2022
BETWEEN |
| | Fitri Wastika Arifin | Applicant |
| | and | |
| | Torture Claims Appeal Board / | Putative |
| | Non-Refoulement Claims Petition Office | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | 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 for leave to apply for judicial review. In the Form 86 the Applicant named herself and the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”) as the proposed respondents and identified the decision of the Board dated 7 October 2022 (the “Decision”) as the decision in respect of which relief is sought. In the circumstances and in view of the factual context as revealed by the papers, it is clear that the Applicant’s intention is to apply for leave to apply for judicial review (“the leave application”) of the Decision of the Board dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 12 April 2022 (the “Notice”) rejecting her claim for non-refoulement protection. Accordingly, leave is granted pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, to amend the Form 86 making the Board the sole proposed respondent and the Director the interested party.
2. The Applicant is an Indonesian national, now aged 30. She had come to Hong Kong to work as a foreign domestic helper on 1 April 2019. She overstayed after her employment was prematurely terminated on 30 December 2020. She was arrested on 18 November 2021 for overstaying and was sentenced to 12 months’ imprisonment. While serving her sentence, she lodged a non-refoulement claim by way of written representation.
3. In due course, the Applicant’s 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]. By the Notice, the Director rejected her claims under all four applicable grounds. She appealed to the Board. Her appeal was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review against that Decision.
4. The Applicant had not request an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered this leave application may be justly determined on paper without an oral hearing.
The Applicant’s case
5. 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. In summary, she claims that she would be harmed or killed by a moneylender for being unable to repay a loan in the sum of 200 million Indonesian rupiah (“IDR”).
6. The Applicant was born in Cilacap, Indonesia. She has one elder brother and two elder sisters. She is single. She had received twelve years of formal education and had four years working experience as a domestic helper in Taiwan prior to coming to Hong Kong. Her father died in around 2014. Her mother is currently in Indonesia.
7. The Applicant alleged that in around 2015 while working in Taiwan, her mother obtained a loan of 200 million IDR under the Applicant’s name to treat her lung disease. She had no knowledge about the particulars of the loan. She said that the moneylender is a well-known loan shark in Jakarta and is a member of a criminal syndicate.
8. The Applicant remitted her income from working in Taiwan to her mother for repaying the loan. This continued until 2016, when the Applicant’s elder brother married and needed financial assistance. Her mother gave half of the Applicant’s remittance to her elder brother and applied the remaining half for repayment of the loan. The moneylender telephoned the Applicant threatening to kill her when she returned to Indonesia unless she repaid the loan in full. The Applicant agreed. The moneylender did not harass her mother.
9. The Applicant did not repay after returning to Indonesia in 2018. Four months later, the moneylender and four henchmen came to her home to beat her up. The Applicant promised to repay when she went to work in Hong Kong. Before the Applicant came to work in Hong Kong in April 2019, the moneylender had come to the Applicant’s home twice to chase for repayment but had not inflicted any injuries on her.
10. During her employment in Hong Kong, the Applicant remitted money back to her mother to cover her living expenses but did not repay the moneylender. The moneylender chased her for repayment over the telephone. Upon termination of her employment in December 2020, the Applicant was afraid to return to Indonesia and worked illegally in Hong Kong until her arrest in November 2021.
The finding of the Board
11. The Applicant testified before the Board. Her evidence about the loan is vague. Except for the principal of 200 million IDR at an annual interest of 10% and a monthly instalment of 8 million IDR, the Applicant was unable to give other important details about the loan, such as the number of instalments she had to repay or the end date of the loan. These are important details which a borrower would be expected to bear in mind.
12. More importantly, there are irreconcilable inconsistencies in her evidence about the loan. The Applicant had said in the NCF that the loan was taken out in 2015 by her mother using a copy of her identity card, but during the hearing, she told the Board that she personally went to moneylender’s home in Jakarta to obtain the loan in May 2018. She tried to explain this discrepancy by saying for the first time that she had repeatedly borrowed from the moneylender. The Board found the Applicant was not telling the truth. It was not satisfied that the Applicant had borrowed money from the moneylender, whether in 2015 or 2018 or had any outstanding loan to repay. Thus, there is no factual basis to support her claim of fear of harm from the moneylender.
13. The Board went further. Even assuming there was a factual basis to support her claim of fear of harm, the Board was not satisfied on her evidence that the moneylender had intention to seriously harm or kill the Applicant. The moneylender had only slapped her a few times, had granted her long extensions of time to pay and had never harassed her mother or her siblings.
14. The Board accepted that illegal debt collection activities and corruption are serious problems in Indonesia. However, on the basis of authoritative and credible country of origin information, it found that the Indonesian government is taking strong measures in combating corruption and state protection against illegal debt collection activities is nevertheless available. It further found that the Applicant could avoid the risk of harm by internal relocation.
15. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claims for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
16. 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]. Thus, absence specific grounds or grounds with sufficient particulars, the Court could only focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
17. The Applicant did not put forward any grounds in her Form 86. In her supporting affirmation, she asserted that she is asking for “life protection under the non-refoulement claim”. She is in effect challenging the Board’s finding that she had failed to establish the factual basis in support of her claim of fear of harm and need for protection, if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.
Discussion
18. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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 observed a very high standard of fairness. The Board found the Applicant not credible on the crucial issues of her loan and risk of harm upon her return to Indonesia. Basically, she failed to discharge his burden of proving her fears and risks. It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM. This is a finding of fact solely 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 detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
19. For the above reasons, leave to apply for judicial review was refused.
Dated 21st day of April 2023.
| | ( Allen LEE )
for Registrar, High Court |
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:
| | | | |
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)). | | Sent to the Applicant
on 21/4/2023
Fitri Wastika Arfin
Applicant’s ref. no:
Nil. | | 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 20220
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 77/22/21 (Formerly RBCZ 5000007/22)
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)]