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

HCAL 905/2021

[2021] HKCFI 3412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 905 of 2021

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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 31 May 2021 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 is 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 a citizen of Indonesia.  She had been working as a domestic helper in Hong Kong since 2018.  Her employment contract was terminated prematurely in 2019, but she overstayed.  On 28 November 2019, she surrendered to the Immigration Department.  She failed to report to immigration to answer her bail and was arrested by the police on 3 December 2020.  On the same date, she lodged a non-refoulement claim.

5.The applicant claimed that, if refouled, she would be harmed or killed by her mother who demanded the applicant to repay the loans.  According to the applicant, her mother borrowed over 100 million rupiah from a loan shark and demanded the applicant to sell a house to repay the loan.  The applicant refused.  After the telephone conversation, the applicant received messages from Facebook that her family were looking for her.  In the belief that her mother would kill her if she refused to repay the loan, the applicant stayed in Hong Kong for protection.  Details of her story are set out in paragraph 6 of the Director’s Decision described below and paragraph 11 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 29 March 2021 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of being harmed or killed by her mother upon refoulement was assessed to be low [11]-[18]; that state protection would be available to her [19]-[25]; and that internal relocation was an option open to her [26]-[31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  She appeared before the Board on 24 May 2021 with the assistance of an interpreter. 

9.The Board considered the applicant’s oral testimony and the evidence in her non-refoulement claim form.  It found that the applicant’s evidence was internally inconsistent.  For example, her evidence about her father and sibling moving away from her mother to avoid paying her mother’s debt was new and never raised before the Director.  Such evidence also is inconsistent with her evidence about her sister and daughters were still living in her mother’s house.  Her evidence on whether the mother asked her sister to help with the loan was also inconsistent.  The Board found that, even taking the applicant’s claim to the highest, the material inconsistences in the applicant’s claim had rendered it untrustworthy [28]-[39].  As a result, the Board rejected her claim on all applicable grounds and dismissed her appeal [45]-[53].    

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

10.The applicant has filed Form 86 dated 23 June 2021 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant had not set out any specific ground for her application.

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 Decisions 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. (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.”

15.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.

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

CONCLUSION

17.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  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