Case Document

100%Judiciary

HCAL 473/2022

[2022] HKCFI 2304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 473 OF 2022

BETWEEN
	Misngatin	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

consideration of the documents only; or

consideration of the documents and oral submissions by the Applicant 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 last entered Hong Kong as a foreign domestic helper on 29 March 2019 and was permitted to stay until 29 March 2021 or two weeks after termination of the employment contract, whichever was earlier. Her limitation of stay was later extended to 10 April 2022. On 19 September 2021, she was arrested by the police and sentenced to two months for offences of soliciting for an immoral purpose and breach of condition of stay. On 14 December 2021, she lodged a non-refoulement claim. After her release, she has been detained in the Immigration detention centers since 20 December 2021. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor, Mujiono and her husband, Sukiran.

5.According to the applicant, in around 2015, she took out a loan with Mujiono, who was a loan shark, to settle her parents’ medical fees. She left her husband’s home address as the contact mean for the loan. In the first two months, the applicant was able to repay the interests. Yet, from the third month onwards, she defaulted the payment due to the failure of her business. In late 2015, Mujiono started to chase the repayments. He visited her husband’s house and threatened to kill her if she was unable to settle the loan. The applicant’s attempt to seek help from her brother-in-law failed and thus she decided to explore the overseas employment. While she stayed with the employment agency, she heard that her husband was furious and threatened to kill her. Out of fear, after her employment contract in Hong Kong ended, she decided to stay for protection. Meanwhile, she also feared that her husband would kill her as he knew that her criminal offence in Hong Kong involved immorality. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 27 January 2022 by the Director (the “Director’s Decision”).

The Director’s Decision

6.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”).

7.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) the absence of physical ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) there was no evidence that her husband and creditor had real intention to harm or even kill her [13]; (iii) there was also no evidence that they could locate her everywhere in Indonesia [14]; (iv) state protection would be available to her [15]-[18]; and (v) internal relocation was a viable alternative [19]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 27 April 2022, the Board conducted an oral hearing for her appeal, during which she supplemented her claim with additional information [37].

9.The Board noted that the applicant’s evidence was inherently inconsistent [38]. In particular, the Board highlighted the followings. It observed that the applicant was inconsistent about the sum of the loan; that she failed to provide any objective evidence to support the claimed loan; that it was implausible that Mujiono would lend her the said sum given her personal background; that her behavior of not sending some of her salary to her mother was inconsistent with her claim that she shouldered the responsibilities to pay for her parents’ medical expenses; and that her new claim of being a guarantor of her friend’s loan in Hong Kong was inconsistent with her claim of indebtedness.

10.In light of the aforesaid findings, the Board found that her claim lacked credibility. Even taking her claim to the highest, there was no evidence showing that the loan shark and her husband would inflict any harms on her if she was refouled since they did not do so in the past. Further, there was no objective evidence on her parents’ medical expenses. Meanwhile, the claimed terms of the loan were illogical. As to her claimed fear of harm from her husband, it remained a bare assertion without any evidential support [39].

11.In these circumstances, the Board rejected the applicant’s claim and dismissed her appeal.

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

12.The applicant has filed Form 86 on 14 June 2022 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

14.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).

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

16.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.”

17.The grounds in paragraph 13 above are her personal opinions and bare assertions without any evidence in support. There is no valid ground to challenge the Board’s Decision.

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

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

CONCLUSION

20.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 8^th day of August 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 8 August 2022 Misngatin Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8 August 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 19944/22/2/62/I2576 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 2865/21 (Formerly RBCZ 5000469/21)(T2I1 18) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)