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

HCAL 243/2019

[2022] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 243 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 19 December 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 entered Hong Kong as a foreign domestic helper and her last employment contract was terminated prematurely on 2 August 2016.  She did not depart and had overstayed.  On 16 January 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband and/or her creditor. 

5.According to the applicant, she borrowed a loan from her creditor in 2006 for her fish farming business.  However, the business failed and she was unable to repay the loan.  Since early 2007, her creditor had constantly visited her house, threatening her and her husband to repay the loan.  The applicant’s husband was attacked twice during the visits.  The stress pressurized her husband, who became abusive and started to beat the applicant with bare hands and sticks.  In the last incident prior to the applicant’s departure, she was slapped by her creditor.  To repay the loan, she left for Hong Kong for work.  While she was in Hong Kong, she learnt that her creditor had forced her parents and children to move to another city and that her husband had threatened to kill her if she did not send money to him regularly. Out of fear, she stayed in Hong Kong for protection.  Details of her claim were set out at paragraph 6 of the Director’s Decision and paragraphs 12 to 44 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 6 December 2017 (“the Director’s Decision”), the Director refused her claim.  The Director found that the level of risk of harm from her husband and the creditor upon the applicant’s refoulement was assessed to be low because (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection would be available to her [16]-[21]; and (iii) internal relocation was an option open to her [22]-[27]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 19 November 2018, the Board conducted an oral hearing for her case. 

9.Having considered the applicant’s evidence, the Board found that (i) the alleged injuries sustained by the applicant failed to attain the level of severity to fall within the definition of “torture” [86]; (ii) it was purely a monetary dispute without state involvement [87]-[93]; (iii) the extensive review of the country of origin information showed that state protection was available to the applicant [105]-[133] and (iv) internal relocation was a viable option for the applicant [134]-[149].  As a result, the Board rejected the applicant’s claim on the ground of Torture risk.  For the same reasons, the Board also rejected her claim on the remaining 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 25 January 2019 for leave to apply for judicial review of the Board’s Decision. 

11.In her affirmation in support of her application, the applicant did not set out any specific ground in support of 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.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 28^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