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

HCAL 226/2019

[2021] HKCFI 128

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 226 OF 2019

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 the Applicant being absent 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 1979, is a national of Indonesia.  She last arrived in Hong Kong on 12 July 2016 to take up employment as a domestic helper.  Her last employment contract was prematurely terminated on 23 July 2016 and she overstayed since then. On 8 November 2017, she was arrested by the police and referred to the Immigration Department for investigation.  She then 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 [5] 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 her 3 sisters because she had sold her family’s house and land without their knowledge to repay her debt to a loan shark.

The Director’s Decision

4.By a notice of decision dated 20 March 2018, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the perceived risk of harm not real nor foreseeable.  He found that state protection is available to the applicant and internal relocation is a viable option for her.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s Decision

5.The applicant attended a hearing before the Board on 11 October 2018.

6.By a decision dated 11 January 2019, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.The Board gave detailed reasons for rejecting the applicant’s claim at paragraphs [48-66] of its decision.  In a nutshell, the reasons can be summarized as follows:

(1)  the applicant’s evidence was not believable because it was inconsistent and implausible [48];

(2)  her evidence as to how she went about selling her parent’s land was vague and lacking in detail [54];

(3)  she is not a witness of truth and her claims for protection not credible [59].

8.Having considered all the evidence/ circumstances relied on by the applicant, the Board found that the applicant would not be at real risk of any types of the proscribed harm, if refouled [61].

9.Accordingly, the Board dismissed the applicant’s appeal on all applicable grounds.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 24 January 2019 for leave to apply for judicial review of the decision of the Board.

11.An oral hearing was scheduled for the applicant on 15 October 2020.  She was absent from the hearing which is treated as her waiving the right for an oral hearing.  The application is therefore considered on the papers.

12.The complaints in the Form 86 and affirmation can be broadly categorised as: (1) procedural impropriety in failing to conduct with sufficient due diligence and to conduct sufficient inquiry; (2) procedural impropriety/ irrationality in failing to give reasons; and (3) error/ misdirection in law in failing to take into account of psychological strain of and threats to her.

Discussion

13.The relevantprinciples regarding non-refoulement claims 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 decision was superseded by the Board’s decision and is 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 and found her to be an incredible witness.  The Board rejected her account of primary facts based on the major inconsistencies in her evidence and its implausibility.  On the factual findings, there would be no factual basis in support of any of the applicable grounds.

16.As explained above, the assessments of evidence and risk of harm 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’s complaints in her affirmation were only bare assertions without details or evidence in support.  They are not viable grounds for the judicial review and are not reasonably arguable to challenge the findings of the Board.

18.I find that 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, if refouled.

19.The Board, with the benefits of hearing the applicant’s oral evidence, rejected the non-refoulement claim mainly based on its adverse finding on the applicant’s credibility with detailed reasons set out in its decision.  I do not find any reasonably arguable basis to challenge the findings of the Board.

20.Both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state her case and enquired into the issues appropriately.

21.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, application for leave to apply for judicial review is refused.

Dated 21 January 2021

The applicant, being absent, acted in person

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