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

HCAL 902/2019

[2022] HKCFI 706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 902 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 March 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 a national of Indonesia.  She entered Hong Kong on 17 April 2014 as a foreign domestic helper.  However, her last employment contract was terminated prematurely on 31 August 2014.  She did not depart when her limitation of stay expired and had overstayed.  On 17 January 2018, she raised a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her parents’ creditor.

5.According to the applicant, her parents borrowed a loan from a loan shark when she was only 5 years old for their family expenses and her mother’s business.  The total sum of principle and interest as of the date of the applicant’s claim was estimated to be HK$55,555.  The business failed and the parents were unable to repay the whole sum.  In 2014, the applicant claimed that her house in Indonesia was forfeited by the loan shark and they also threatened to kill her if she failed to repay the loan.  During her three months stay in Indonesia, the loan shark and his subordinates continued to threaten her.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim were set out at paragraph 9 of the Notice of Decision dated 28 August 2018 by the Director (“the Director’s Decision”) and paragraphs 22 to 24 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.It is noted that the applicant did not attend the scheduled screening interview before the Director on the ground of sickness [5].  Having considered the relevant documents, by way of the Director’s Decision, the Director refused her claim.  The Director found that there was no substantial ground to believe that the applicant would be harmed by the loan shark because (i) the absence or low intensity of the past ill-treatments indicated an unlikelihood of future risk of harm [16]; (ii) state protection was available to her [17]; and (iii) internal relocation was also an option [18]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 27 December 2018, the Board conducted an oral hearing for her appeal.

9.The Board noted the applicant’s failure to lodge the non-refoulement claim promptly when she arrived Hong Kong, an act of which would damage her credibility [26].  The Board found that there was no documentary evidence for the loan [30].  It further considered the applicant’s oral evidence to be evasive, contradictory and lacked credibility [32].  In light of these inconsistences, the Board refused to accept the applicant’s claim about the loan and the threats.  The Board also found that the dispute was localized [38].  Besides, there was no evidence of state involvement [47].  In any event, internal relocation would be available to the applicant [60].  As a result, 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 2 April 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, for the reasons stated for her claim, she could not go back or her creditor would kill her.

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.

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 21^st 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