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

HCAL 2616/2018

[2022] HKCFI 762

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2616 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 18 September 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 on 10 December 2014 as a foreign domestic helper and subsequently she was permitted to stay as a visitor until 11 March 2016.  She did not depart and had overstayed.  On 8 June 2016, she surrendered to the Immigration Department.  On 22 March 2017, 1 April 2017 and 7 April 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan sharks.

5.According to the applicant, her father borrowed a large sum from five different loan sharks.  In 2008 when her father passed away, she undertook the responsibility to repay the loans.  However, in 2011, she started to default the payments.  Since then, the loan sharks had been harassing her and her family.  She had no choice but to take a loan from her creditor to repay the previous loans.  Thereafter, in 2013, since she needed to pay for her younger brother’s tuition, she again defaulted the repayments.  Her siblings told her about the loan sharks’ harassments again.  At the end of 2013, there was flooding and she lost contact with her siblings.  She believed that the loan sharks killed them and threw them in the flood.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim 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 a Notice of Decision dated 12 March 2018 (“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 harm from the loan sharks upon refoulement was assessed to be low [13]; that state protection would be available to her [14]-[18] and that internal relocation was an option open to her [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  An oral hearing was held on 30 July 2018, during which the applicant gave oral testimony before the Board with the assistance of an interpreter [15].

9.Having considered the applicant’s evidence and seeking clarifications from her during cross-examination, the Board dismissed her appeal.  The Board recorded in details the material aspects of the applicant’s claim as advanced before the Director and the Board [5]-[22].  The Board accepted the applicant’s evidence on the facts of her case to be reliable [27]-[36].  It then proceeded to consider her claim on the individual grounds.  The Board found that, based on the pervious circumstances, it was unlikely that there were substantial grounds to believe that the applicant faced a real risk of being tortured by the loan sharks.  It also found that it was a private dispute without state involvement [43]-[53].  For these reasons, the Board rejected her claim on Torture risk.  Further, the Board found that state protection was available to the applicant [60] and that internal relocation was an option for her [64].  As a result, the Board also rejected her claim on the other applicable grounds. 

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 20 November 2018 for leave to apply for judicial review of the Board’s Decision.

11.In her affidavit in support of her application, the applicant only said that the Director and the Board had dismissed her case, but she did not specify any ground in support of her application.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.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).

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.It is obvious that the Board accepted the facts of her case. Based upon the accepted facts, the Board found that they do not support her claim under the relevant statutory provisions or the Convention. The applicant has submitted no valid ground 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 to 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