Indah Dwi Winarsih v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 513/2019

[2021] HKCFI 3413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 513 of 2019

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Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

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 19 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the interested party is the Director of Immigration (the “Director”).

3.The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).  Her application is therefore dealt with on the papers.

The applicant

4.The applicant is a citizen of Indonesia.  She had been working as a domestic helper in Hong Kong since 5 July 2006.  Her last employment contract was terminated prematurely on 28 April 2013.  She overstayed and took up unapproved employment.  On 17 October 2013, she was sentenced to 2 month’s imprisonment for overstaying and taking up unapproved employment.  On 27 March 2014, she lodged a non-refoulement claim by a written signification dated 3 March 2014.

5.The applicant claimed that, if refouled, she would be harmed or killed by a loan shark and his companions relating to her late father’s debt.  According to the applicant, she learnt in 2005 that her father borrowed some money from a loan shark.  She had witnessed the loan shark, together with 5 men, coming to her house threatening her father for repayment.  In 2006, while she was working in Hong Kong, she was told by her in-law that her father was killed by the loan shark.  She also claimed to receive two phone calls from the loan shark demanding repayment of her late father’s debt.  Out of fear, she stayed in Hong Kong for protection.  Details of her story are set out paragraph 6 of the Director’s Decision described below and paragraphs 14 to 24 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 VII C 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 24 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there was no ground for believing that she would be harmed or killed by the loan shark and the companions if she returned to Indonesia [12]-[13]; that state protection would be available to her [14]-[16] and that internal relocation was an option open to her [17].

The Board’s Decision

8.The applicant appealed against the Director’s Decision to the Board.  She appeared before the Board on 26 November 2018 and answered inquiries from the Board with the assistance of an interpreter. 

9.The Board weighed her oral testimony against the evidence given in the non-refoulement claim form.  It found that the applicant failed to provide any details of the debt and the information of the loan shark, the vagueness and inconsistency of which suggested that the applicant was not obliged to repay the debt.  Her evidence on the father’s death was also inconsistent.  The applicant’s inconsistent evidence on her brother’s whereabouts undermined her credibility.  Further, her evidence on the failure to report to the police, on whether the loan was still outstanding and on the failure to make the non-refoulement application promptly were also vague, inconsistent and lacked cogent explanations [90]-[103].  In light of these unsatisfactory evidence, the Board did not accept that the loan shark had any interest in chasing the applicant.  Thus, it rejected the applicant’s claim on all applicable grounds and dismissed her appeal [105]-[111].   

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 22 February 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that the Board disregarded her dangerous situation.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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

“13.… …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.”

15.She has submitted no valid ground to assist her application.

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

17.There is no evidence that shows that the applicant has any realistic prospect of success in her intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for her intended judicial review.  Accordingly, I dismiss her application.

Dated the 30^th day of November 2021

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