Rika Rahim Matul Hasanah v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 450/2022

[2022] HKCFI 2156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 450 of 2022

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 11 May 2022 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 8 August 2010 as a foreign domestic helper. However, her employment contract was prematurely terminated on 8 October 2010. She was required to leave on 22 October 2010. Nevertheless, she did not depart and had overstayed since 23 October 2010. On 11 April 2013, she was arrested by the police for overstaying. After a two-month imprisonment, she was issued with a deportation order. Since 16 February 2015, she failed to report to the Immigration Department. Thereafter, on 10 May 2021, she was again arrested by the police and is currently detained.

5.The applicant’s non-foulement claim was lodged by way of written representations dated 16 December 2013, 21 December 2020 and 19 March 2021 respectively. The basis of her claim was that, if refouled, she would be harmed or killed by her father’s creditor, X.

6.In brevity, the applicant claimed that she acted as her father’s guarantor in securing a loan from a moneylending company for her father’s cattle trading business in 2005. X was the person in charge of the company. In October 2010, after her employment contract was terminated, she learnt that her father was unable to repay the loan. X visited him frequently and threatened to kill the applicant if she did not agree to a marriage with X. As her father repeatedly asked her to repay the loan, she ceased contact with her family in December 2010. In light of the fear that X would harm or kill her and that she would not receive sufficient medical treatments if infected with coronavirus, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 31 August 2021 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) X had shown no real intention to harm or even kill her and her alleged harm did not attain a minimum level of severity [15]; (ii) there was no evidence suggesting that X would chase her everywhere in Indonesia [16]; (iii) the applicant’s conduct was inconsistent with someone who feared a risk of harm [17]; (iv) the pandemic was worldwide and the Indonesian government implemented measures to assist the citizen [19]; (v) state protection would be available to her [20]-[23]; and (vi) internal relocation was also a viable alternative [24]-[28].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 28 April 2022, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [18].

10.The Board considered the country of origin information (“COI”) and provided those relevant to this appeal, namely, the general information in Indonesia, its economy, employment situations and the geographic information in the appendix attached to the Board’s Decision [39];[42].

11.It then proceeded to consider the applicant’s evidence. The Board found that the applicant’s evidence on the loan was vague and she was unable to provide any meaningful details [90]. It also considered the applicant’s evidence on her role as a guarantor to be full of discrepancies [92]-[93]. It also noted that her evidence on the repayments was inconsistent [94]. She also contradicted her evidence on her father’s business failure and on the repayment terms [95]-[96].

12.The Board did not accept the applicant’s assertion that she was unemployed prior to her departure to Hong Kong. Having assessed the COI, the Board found that the loan shark was unlikely to lend the said sum to the applicant or her family [97]-[107]. In addition, the applicant’s delay in seeking protection in Hong Kong also undermined her credibility [109]-[111]. Meanwhile, the Board rejected the applicant’s claim based on the potential Covid-19 infection [112]-[114.6]. Thus, the Board concluded that her claim was not substantiated.

13.In any event, the Board found that state protection and internal relocation were both available to the applicant [117]-[138].

14.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

15.The applicant has filed Form 86 dated 9 June 2022 for leave to apply for judicial review of the Board’s Decision.

16.In her affirmation in support of her application, the applicant said that she was not satisfied with the Board’s Decision; that it was devoid of reality and that there was no transparency in the process of making the Decision.

DISCUSSION

17.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).

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

19.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.”

20.The grounds in paragraph 16 above are her personal opinions and bare assertions without any evidence in support. There are no valid grounds to challenge the Board’s Decision.

21.The Court does not find any fault with the Board in reaching the Board’s Decision.

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

CONCLUSION

23.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 1^st day of August 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