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

HCAL 2495/2018

[2022] HKCFI 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2495 of 2018

BETWEEN

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 8 October 2018 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 national of Indonesia.  She last entered Hong Kong on 12 March 2015 as a foreign domestic helper.  Her employment contract was terminated prematurely on 27 June 2015 but she did not depart and had overstayed.  On 13 September 2015, she lodged a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her father and/or her father’s creditor. 

5.According to the applicant, her father had gambling and drinking problems.  In 2011, he told the applicant that he had borrowed a loan from a creditor and asked her to marry the creditor to offset the loan.  The applicant refused.  Since then, her father started to abuse her physically and, in one occasion, almost drown her.  Later in 2013, the creditor also came to the applicant’s house, asking her to marry him.  Desperately, the applicant attempted to suicide twice before she eventually fled to Hong Kong for protection.  Details of her claim were set out at paragraph 6 of the Director’s Decision and paragraph 13 of the Board’s Decision as 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 a Notice of Decision dated 11 September 2017 (“the Director’s Decision”), the Director refused her claim. The Director found that there was no ground for believing that she would be harmed or killed by her father and/or the creditor upon refoulement because (i) there was no evidence that her father and/or the creditor intended to cause serious bodily harm or even kill her [13]; (ii) state protection would be available to her [14]-[20] and (iii) internal relocation was an option open to her [21]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 18 July 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter. 

9.The Board explored the material aspects of the applicant’s claim in details [15]-[35].  It inquired with the applicant the discrepancies in her oral evidence and those in her statement.  Nevertheless, the applicant’s explanations were either generalized or that she had forgotten [35]-[39].  The Board duly conveyed its concerns over the inconsistencies in the applicant’s claim.  Consequently, the applicant raised a new claim that she was a wanted person in Indonesia because she forgot to bring her ID card when the authorities raided the café she worked in Jakarta [41].  The Board rejected her new claim as she was able to travel worry-free out of Indonesia [43].  Further, having considered all the evidence, the Board rejected the crux of the applicant’s claim, namely, the loan and the creditor [45].  Thus, it found that the applicant failed to establish a risk of harm upon refoulement.  In these premises, the Board rejected the applicant’s claim on all applicable grounds and dismissed her appeal.    

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

10.The applicant has filed Form 86 dated 7 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said “I am not satisfied with the Decision of Immigration. My life is still danger in my home country. So please accept my 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.There is no valid reason from the applicant to challenge the Board’s Decision. The Board did not accept her evidence on the facts of her case.

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 the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 15^th day of March 2022

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