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

HCAL 1531/2018

[2020] HKCFI 3078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1531 OF 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1983, is a national of Indonesia.  She had worked as a domestic helper in Hong Kong in 2008 and 2009.  On 21 May 2009, she last came as a visitor and permitted to remain until 16 September 2009.  She overstayed and remained in Hong Kong unlawfully.  On 25 November 2010, she was arrested by the police and referred to the Immigration Department for investigation.  She was released on recognizance and did not report since 3 September 2012.  On 5 April 2015, she was referred to the Immigration Department by the police.  On 6 April 2015, she lodged a non-refoulement claim.  She was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [2-3] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the creditor of her grandmother.  She claimed that between October 2007 and January 2008, when she returned from working in Singapore, the creditor came to her home threatening to beat her grandmother.  After she came to work in Hong Kong, her grandmother told her on telephone that the creditor threatened to kill her grandmother and then kill the applicant if the money was not repaid.  She lost contact with her grandmother since 2008.

The Director’s decision

4.By notices of decision dated 4 August 2015 and 11 September 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  Having taken into account all relevant circumstances, the Director assessed that there are no substantial grounds to believe that she would be ill-treated or being killed by the creditor.  He further found that state protection is available to the applicant and internal relocation is a viable option for her, which further lower the level of risk.  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decision

5.The applicant attended a hearing before the Board on 17 March 2018.

6.By a decision dated 30 July 2018, the Board rejected the appeal/ petition confirming the Director’s decisions.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [5-33] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s asserted story is woefully vague and simply insufficient to discharge her burden of proof or to support a non-refoulement claim, noting including that: the identity of the creditor is unstated, she has never seen the creditor, the creditor has never assaulted her or done any harm to her, the threat was uttered by her grandmother, etc. [5.1];

(2)  the Board emphasized the applicant overstayed and absconded from recognizance [6];

(3)  in anyevent, state protection is available and internal relocation is a viable option for the applicant [32-33].

8.Even on the applicant’s alleged facts, the Board found that she failed to establish her claim on all relevant grounds.

Application for leave to apply for judicial review

9.The applicant filed a Form 86 on 2 August 2018 for leave to apply for judicial review of the decision of the Board.

10.No request for oral hearing has been made.  The application is therefore considered on the papers.

11.In the Form 86 and supporting affirmation, the applicant did not set out any proper grounds for the relief sought.

12.In the affirmation in support, she stated that she does not have any other family member in Indonesia and was afraid to go back to her country because she would be killed by the creditor.

Discussion

13.The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

14.When the applicant pursued the appeal to the Board, the Director’s decisions were superseded by the Board’s decision and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This decision will only focus on discussing the Board’s decision.

15.In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant as her claim was “woefully vague” and she failed to discharge her burden of proof for reasons set out in its decision.  In any event, state protection and internal relocation are available to her.  Even on her alleged facts, she would still fail to establish a case of non-refoulement.

16.As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

17.The applicant stated no grounds of the judicial review in Form 86.  She mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense.

18.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

19.The applicant’s conduct in Hong Kong by her delay in lodging the claim for protection was inconsistent with someone in genuine fear for her life and safety.  It could be taken as damaging the applicant’s credibility of her claim.  Her claim of fear is implausible.

20.Further, even if one gives her account the most favourable interpretation, the alleged threat demonstrates no real risk of harm.  There was no valid reason why the creditor of her grandmother would target her and still wish to pursue her after so many years.

21.The evidence can hardly establish that the applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm.  There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

22.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

23.For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.

Disposition

24.Accordingly, leave to apply for judicial review is refused.

Dated 23 December 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