Rina Matopani Bt Toha Anwari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1071/2019

[2022] HKCFI 2664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1071 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 February 2018 of the Director of Immigration (“the Director’s Decision”) and the Decision dated 16 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Since the Director’s Decision has been dealt with by the Board, it is not amenable to judicial review and is therefore dismissed. [1]

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 as a foreign domestic helper and her last employment contract was signed in December 2014.  She was permitted to stay until 24 December 2015.  Thereafter, she left Hong Kong on 14 February 2015 and returned on the same date.  She was permitted to stay until 24 December 2016.  However, her employment contract was terminated on 3 December 2016.  Her application for extension of stay was refused and she was required to leave on or before 30 December 2016.  She did not do so and had overstayed since then.  On 7 April 2017, she surrendered to the Immigration Department.  On 20 June 2017, 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 named Ade Irawan.

5.In brevity, the applicant borrowed a sum from Ade to cover her mother’s medical expenses in 2012.  Initially, she was able to repay the interests on a monthly basis using her salary earned in Hong Kong.  However, since her employment contract was terminated in 2016, she started to default the repayments.  Thereafter, Ade visited her house and damaged the properties therein.  He also threatened to kill the applicant if she failed to settle the loan.  Out of fear, she decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 26 February 2018 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:

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

(2)  risk of violation of the right to 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 Decision, the Director refused the applicant’s claim for reasons that she would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) the applicant’s claimed fear of harm was speculative [11]; (ii) her carefree attitude toward her family was one of the indicators that her story was not credible [12]; (iii) the alleged threats, if any, were localized [13]; (iv) her delay in lodging the protection claim also undermined her credibility [14]; (v) state protection would be available to her [15]-[17]; and (vi) internal relocation was also a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 November 2018, the Board hold an oral hearing for her appeal, during which she was assisted by an interpreter [7].  Nevertheless, the applicant indicated that she did not wish to give oral evidence [8].  The Board explained its doubts over the material aspects of her claim.  Yet, the applicant confirmed that she wanted the Board to deal with her claim on the existing information [8].  As a result, the Board proceeded to determine the applicant’s claim on paper.

9.After reminding itself of the relevant legal principles, the Board considered the applicant’s claim.  It highlighted matters that it wished to, but was unable to, clarify with the applicant [48]-[54].  It also examined the country of origin information and found that state protection and internal relocation to Bali or Jakarta were both available to the applicant [55]-[57]. It also noted that the material aspects of the applicant’s claim, as stated in her non-refoulement claim and during the interview before the Director, were general and lacked specifics [58]-[64].  It thus concluded that it would not accept the applicant’s claim as credible [65].

10.In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.

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

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

12.In her affirmation in support of her application, the applicant said she wanted to have judicial review of the Board’s Decision without raising any ground.

DISCUSSION

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

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

15.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.”

16.I have noted that the applicant had refused to provide further information to the Board upon request despite the Board’s warnings above. She cannot complain that the Board did not accept her evidence.

17.The Court of Appeal in TK v Michael C Jenkins Esq  and Director of Immigration CACV 286/2011, 21 November 2012 [2013] 1 HKC, 526, Hon. Cheung CJHC, Stock VP and Fok JA held:

“25. High standards of fairness certainly do not entitle the torture claimant, having stated a claim, ‘to simply sit back and require the Director to disprove it’. The exercise of determining whether a claim made under article 3(1) of the CAT is valid must be one of “joint endeavour”. CH v Director of Immigration [2011] 3 HKLRD 101, para 47.”

18.The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of her claim: section 37ZA (1)(a).  As the law imposes an obligation on her to make prompt and full disclosure of all material facts in support of the claim, her refusal to do so is in contravention of the statutory provision and she must bear the consequences. She had been told the consequence of the Board not believing her evidence if she refused to answer the questions put by the Board to her. In my view, high standards of fairness give no exemption to the applicant for the compliance of the Ordinance.

19.Where the applicant refused to give evidence to verify her evidence, her evidence is no better than the hearsay evidence, which the Board was entitled to give very little or even no weight to it. The Board is therefore quite entitled to come to its conclusion that her evidence is therefore not credible.

20.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.

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

CONCLUSION

22.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 1^st day of September 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