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

HCAL 770/2019

[2023] HKCFI 1115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 770 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 13 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

The applicant

3.The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 13 September 2012 and was permitted to stay until 13 September 2014 or two weeks after termination of the contract, whichever was earlier.  On 19 August 2013, her employment contract was prematurely terminated.  On 21 January 2015, she surrendered to the Immigration Department.  On 2 December 2015 and 4 December 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the debt collectors from the bank and her stepfather as she failed to repay the loan taken out by her brother.

4.In short, the applicant’s brother borrowed a loan from the bank in mid-2011 with the applicant as the guarantor.  He vanished after getting the money.  Sever days after her brother left, the debt collectors from the bank visited her home, threating to kill her and her parents if they did not settle the loan.  She was mentally troubled for the constant harassments and decided to leave for Hong Kong.  During her overstay in Hong Kong, she learnt that the bank confiscated her mother’s house.  Her stepfather was furious at her as he blamed her for not repaying the loan.  He also threatened to kill her if she returned without settling the loan.  Out of fear, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 27 February 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 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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the claimed risk of harm from the debt collectors and her stepfather was groundless.  In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) there was no evidence that the debt collectors or her stepfather could locate her everywhere in Indonesia [14]; (iii) state protection would be available to her [15]-[21]; and (iv) internal relocation was a viable option [22]-[23].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 19 November 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquires [41]-[51].

8.Having considered the evidence, the Board made the following findings. It identified several inconsistencies in the applicant’s claim.  For example, the applicant portrayed her brother as an alcoholic without money.  Yet, it was doubtful that someone like him could obtain a loan from a bank [53]-[54].  The interest allegedly attached to the loan was high, which was more in line with one provided by a loan shark than a bank [56].  Together with the fact that the applicant, as a guarantor who also signed the loan, could not name the bank, the Board found that the existence of the loan was not credible [58]. Meanwhile, the debt collectors only threatened the applicant and her family without inflicting any harm and the alleged threats from the stepfather were not accepted by the Board [59]-[60].  In addition, the applicant’s voluntary break of her employment contract indicated that she was not concerned about the situation in the home country [61].  In any event, internal relocation was a viable option [62]-[64].

9.For these 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

10.The applicant has filed Form 86 dated 19 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said she has problem in Indonesia and her life will be in danger because she is unable to repay her debt. If she returns, she will be caught and her creditor may kill her.

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.The Board had found that her alleged loan and her step father’s threat were incredible. The grounds as set out in paragraph 11 above do not assist her application. There is no valid ground 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 5^th day of May 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