Nuryanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2881/2018

[2020] HKCFI 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2881 of 2018

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is an Indonesian national.  She stayed in Hong Kong, first as a domestic helper in 2011, then as a visitor after termination of her employment contract.  She was allowed to stay until 21 November 2012.  She overstayed and surrendered to the Immigration Department on 29 July 2015.  She lodged her non-refoulement claim by written representation on 25 January 2016.

5.The applicant claimed that, if refouled, she would be harmed or killed by a loan shark because she was unable to repay the loan drawn by her father from the loan shark.  Her father drew down loans from the loan shark and asked her to pay him money.  He threatened that if she did not pay, he would kill her.  He also told the applicant that he told the loan shark to turn to her for repayment of the loans.  The story can be found from paragraph 7-18 of the Board’s Decision.

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By Notice of Decision dated 11 January 2018 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds for believing that she would be harmed or killed by the loan shark in Indonesia [11]; that state protection was available to her [13] and that internal relocation was an option open to her [14].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 17 September 2018.

9.The Board rejected her appeal and confirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and for the reasons [34-47], it accepted her evidence on the facts of her case.  However, the Board said:

“47. Based on the available information, I accept that the Appellant may face societal discrimination in Indonesia especially if she were to return with her daughter; and that she would also face difficulties with or without her child due to her lack of family support. However, there is no available information to suggest that the Appellant would face harm amounting to persecution, torture, CIDTP, or the arbitrary deprivation of life, in these circumstances.”

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.  She had not stated any grounds in support of her application.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  See paragraph 10 above.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.(1) … Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.The Court does not find any error of law or procedural unfairness in the Board’s findings.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 7^th day of August 2020

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