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

HCAL 502/2019

[2021] HKCFI 3773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 502 of 2019

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 15 February 2019 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 an Indonesian national.  She came to Hong Kong on 18 September 2015 as a domestic helper.  Her employment contract was terminated prematurely.  She overstayed and surrendered to the Immigration Department on 8 December 2015.  She lodged non-refoulement claim with the Immigration Department by written significations of 3 and 5 October 2016.

5.The applicant claimed that, if refouled, she would be harmed or killed by her husband, elder siblings and Gunawan, the creditor, because she could not repay the debt.  Because of financial difficulties, she had borrowed money from creditors, Gunawan being one of them. She had used her family property as guarantee for her loan.  She was unable to repay her debts.  As a result, she was beaten up by her husband from time to time.  She also had disputes with her siblings for the guaranteed loan.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

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 6 November 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that there were no substantial grounds in believing that she would face the risk of harm from her husband, elder siblings or Gunawan upon her return to Indonesia [11]; that reasonable state protection would be available to her [16] and that internal relocation was an option open to her [17].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision.  She appeared before the adjudicator of the Board on 19 September 2018.

9.The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  See paragraphs 23, 24, 25, 34 & 35 of the Board’s Decision.

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

10.The applicant has filed Form 86 dated 21 February 2019 for leave to apply for judicial review of the Director’s Decision and the Board’s Decision.

11.In her affirmation in support of her application, the applicant simply said that she applied for leave to apply for judicial review against the Director and the Board and enclosed the Director’s Decision and the Board’s Decision.  She did not set out any specific grounds 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 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. (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 applicant referred to the Director’s Decision.  Her application should be for leave to apply for judicial review of the Board’s Decision as the Director’s Decision is not susceptible to judicial review once an appeal to the Board was pursued by the applicant.  See Re: Moshsin Ali [2018] HKCA 549 at §45.  The applicant has not set out any error of the Board in the assessment of her case in support of 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.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

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

Dated the 16^th day of December 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