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

HCAL 1044/2019

[2022] HKCFI 1688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1044 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 26 January 2018, the Notice of Decision of the Director of Immigration (the “Director’s Decision”). which has been dealt with by the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 12 April 2019 (“the Board’s Decision”). The Director’s Decision is therefore not amenable to judicial review. Form 86 will be amended upon the Court’s own motion below.

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, the Director of Immigration (“the Director”) is the interested party and the relief sought is the Board’s Decision.

The applicant

4.The applicant is a national of Indonesia. She last entered Hong Kong on 25 May 2014 as a visitor and was permitted to stay until 24 June 2014. She overstayed and was arrested by police on 27 May 2015. By written representation received by the Immigration Department on 8 June 2015, she lodged non-refoulment claim on the basis that, if refouled, she would be harmed or killed by the loan shark because she was unable to pay off the loan borrowed by her husband to the loan shark.

5.According to the applicant, she was married with 3 children. Her husband had borrowed about 500 million Indonesian currency from a loan shark. He was unable to repay the loan and he asked her to repay for him. The loan shark chased her for the loan. Her husband had disappeared and was nowhere to be found. The loan shark had gone to her home in Indonesia. They threatened to kill her if she did not repay the loan. Her mother advised her to leave Indonesia for Hong Kong. She took her mother’s advice and came to Hong Kong to take up a domestic employment. Her mother and her 3 children moved to live in another place in Indonesia. She received telephone calls from the loan shark for repayment of the loan. Her mother in Indonesia told her that the loan shark was still looking for her. Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)  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

(4)  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 way of the Director’s Decision, the Director refused the applicant’s claim. The Director found that there was no evidence for believing that she would be subjected to harm or being killed by the loan shark upon her return [11]; (ii) the state was not involved and state protection would be available to her [14 – 16]; and (iv) internal relocation was an option open to her [17-18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board and attended a hearing on 12 November 2018.

9.Before the Board, she had added some information for the Board’s consideration. After a few questions from the Board, she said that she no longer remembered the facts and would just relied upon the facts she had submitted to the Director. Having considered her evidence, the Board did not accept her evidence of her husband’s loan, the loan shark and that she was threatened by the loan shark to repay her husband’s loan. In a nutshell, the Board rejected her evidence on the facts in support of her claim. Thus, the Board rejected the applicant’s claim 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 17 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 she rejected the Board’s Decision as it disregarded her dangerous situation.

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.The applicant has not been able to raise any 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 23^rd day of June 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