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

HCAL 1059/2019

[2022] HKCFI 2877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1059 OF 2019

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 29 March 2019 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 1 June 2012 as a foreign domestic helper and was permitted to stay until 29 June 2013.  On 8 August 2012, her employment contract was terminated prematurely after her criminal conviction.  On 15 September 2012, she was referred to the Immigration Department.  On 26 October 2012, she raised a torture claim, which was later rejected on 27 May 2013 and the subsequent petition was also dismissed on 24 September 2013.  On 25 July 2013, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor Mohammad Saleh (“Saleh”). 

5.According to the applicant, she borrowed the loan for her chicken farm business in around 1994 or 1995.  Saleh was well connected with the gang groups and the loan was of high interest rate.  In 1999, her business failed due to pandemic.  She thus defaulted the loan.  To chase the payments, Saleh visited her house and also took valuable objects to settle the loan.  After the applicant was employed, she also remitted her salary to settle the loan until 2009 when she stopped due to the financial difficulties of her family.  Through her family, Saleh threatened to torture or even kill her if she returned.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 9 July 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 violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(2)  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

(3)  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 on the basis that 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 [15]-[17]; (ii) Saleh’s influence was localized [18]; (iii) state protection would be available to her [19]-[22]; and (iv) internal relocation was a viable alternative [23]-[24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 January 2019, the Board conducted an oral hearing for her appeal, during which she gave evidence. 

9.Having considered the evidence, the Board identified several inconsistencies in the material aspects of her claim.  For example, when did she stop repaying the loan? what was Saleh’s reaction to her inability to repay? and what threats did Saleh pose against her? [26].  Thus, the Board concluded that the applicant’s claim lacked credibility.  On this basis, 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 18 April 2019for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant stated:

(1)  Procedural impropriety: failure to apply paragraph 2 of the UN committee against Torture General Comment No. 2; failure to conduct sufficient inquiry into the relevant country of origin conditions and failure to state sufficient reasons for BOR 3 risk assessment.

(2)  Error /misdirection in law. Failure to take into account of psychological strain and threats to her personally or threats to her directly to kill her.

(3)  No sufficient basis to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon refoulement.

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

13.The Court will bear in mind that the Board’s Decision 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.Those grounds under paragraph 11 above are bare assertions or her personal opinions without any evidence in support of them. It is clear the adjudicator had put a lot of questions to the applicant and she did answer them.  The issue of psychological strain was not raised before the Board.

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 20^th 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