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

HCAL 1086/2019

[2022] HKCFI 2220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1086 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 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”). Her claim on other grounds of Torture risk, BOR 3 risk and Persecution risk[1] had been dealt with. The Director of Immigration (“the Director”) rejected her claim on those grounds. She had appealed the Director’s decision to the Board, which dismissed her appeal by its Decision dated 21 December 2016.

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 12 November 2011 as a foreign domestic helper.  On 2 December 2013, her employment contract was terminated prematurely.  However, she did not leave within the limitation of stay and had overstayed since 17 December 2013.  On 18 February 2014, she was arrested by the police for breach of condition of stay by overstaying.  On 26 February 2014, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by a loan shark. 

5.According to the applicant, she married her ex-husband Ahmad in 2008 but the couple separated in 2009.  In the beginning of 2011, Ahmad asked her to sign some loan documents, claiming that part of the money would be given to the applicant for her living expenses.  Ahmad did give the applicant a certain sum but ceased in around February 2011 because he could no longer afford the loan. While the applicant was working in Hong Kong, the loan shark made threatening phone calls to her.  Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 17 April 2015 by the Director (the “Director’s First Decision”) and paragraphs 3 to 10 of the decision by the Board dated 21 December 2016 (the “Board’s First Decision”). 

The Director’s Decisions

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

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

(2)  risk of violation to the right of life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“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 First Decision, the Director refused the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk for she would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) the alleged threatening phone calls were unsupported by any evidence [14]; (iii) state protection would be available to her [15]-[20]; and (iv) internal relocation was a viable alternative [21]-[23].

8.On 14 April 2017, the Director also handed down a Notice of Future Decision dismissing the applicant’s claim on BOR 2 risk (the “Director’s Second Decision”). 

The Board’s Decisions

9.The applicant first appealed the Director’s First Decision.  On 28 December 2015, the Board conducted an oral hearing for her appeal, during which she gave evidence and was cross-examined [2]. 

10.Having considered all the evidence, the Board found that the applicant’s claim was not substantiated.  It observed that five years had lapsed since the loan shark’s last phone call to her.  It was indicative that the loan shark was no longer interested in her [14].  The evidence also showed that the applicant was never physically ill-treated by the loan shark and the purpose of the verbal threats was nothing more than a demand for the repayments [15].  In any event, state protection was available to her and internal relocation was a viable alternative for her [17]-[23].  Thus, by way of the Board’s First Decision, the Board dismissed her claim on Torture risk, BOR 3 risk and Persecution risk and dismissed her appeal against the Director’s First Decision. The applicant did not appeal against the Director’s First Decision.

11.On 1 June 2017, the applicant appealed against the Director’s Second Decision.  On 20 February 2019, an oral hearing was held for her appeal. Before the Board, the applicant said that she had no new facts or information [8]. 

12.The Board adopted the finding of facts in the Board’s First Decision. It also opined that, despite the allegation that the loan shark visited her mother’s house, there was no evidence showing that the loan shark had harmed or had any intention to harm her mother.  As a result, the applicant’s feared ill-treatment was unlikely to materialize [25]-[28].  For these reasons, the Board by its Second Decision also rejected the applicant’s claim on BOR 2 risk and dismissed her appeal.  

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

13.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

14.In her affirmation in support of her application, the applicant enclosed a copy of the Board’s Second Decision without setting out any specific ground.

DISCUSSION

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.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.”

18.There is no valid reason from the applicant to challenge the Board’s Second Decision.

19.The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

21.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss her application.

Dated the 21^st day of July 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