Dewi Indra Sari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 249/2019

[2023] HKCFI 425

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 249 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 17 January 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.

The applicant

3.The applicant is a national of Indonesia. She was a foreign domestic helper in Hong Kong and her last employment contact allowed her to stay in Hong Kong until 26 February 2012 or two weeks after termination of the said contact, whichever was earlier. Her employment contract was prematurely terminated and she was required to leave on or before 4 January 2011. She did not depart and had overstayed since 5 January 2011. On 29 March 2011, she was arrested by the police for overstaying. On 19 April 2011, she lodged a torture claim which was later rejected on 24 January 2013. On 28 October 2013, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by Imam because he forced her to marry him in exchange for loan settlement.

4.In short, the applicant claimed that she borrowed a loan from Imam in 2009 to settle her parents’ medical expenses. After her parents passed away, even she sold the house, she was still unable to repay the loan. She stated that Imam posed threats to her three times in total before she left for Hong Kong and demanded her to marry him to substitute the loan. Out of fear, the applicant eventually decided to seek non-refoulement protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 11 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  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”);

b.  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

c.  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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed fear of harm from Imam was groundless. In elaboration, the Director found that (i) her past experience did not support a finding of future risk of harm [13]; (ii) state protection would be available to her [14]; (iii) internal relocation was a viable option [15].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [7].

8.The Board noticed that the applicant provided inconsistent accounts on Imam’s identify and on the date she took out the loan [41]. It also noticed that the applicant failed to explain the benefit Imam would receive had she repaid the loan as she claimed that the loan was free of interest [42]. Even if the Board accepted her evidence at its face value, it found that the alleged harm suffered by the applicant was only verbal threats which did not attain the minimum level of severity [43];[57]. Meanwhile, Imam’s past conducts had shown no intention to cause harm or even kill the applicant [44]-[47]. The Board further considered the country of origin information cited by the Director’s Decision and concluded that state protection would be available to her [48]-[50]. In any event, internal relocation was a viable alternative [61]-[68].

9.As a result, the Board concluded that the applicant’s claim was unsubstantiated 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 28 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant attached a copy of the Notice of Decision and Board’s Decision without stating any specific ground.

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 Decisions 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.There is no valid ground from the applicant to challenge the Board’s Decision.

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 to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 7^th day of March 2023

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