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

HCAL 1525/2019

[2023] HKCFI 1624

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1525 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 10 April 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 last entered Hong Kong as a foreign domestic helper on 25 March 2016 and was permitted to stay until 25 March 2018.  However, her employment contract was prematurely terminated on 18 June 2016.  She did not depart within the time limit and had overstayed since 3 July 2016.  On 4 July 2016, she surrendered to the Immigration Department.  On 13 March and 14 March 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband and her creditor. 

5.In brevity, the applicant married her husband in 1996.  In 2009, their marriage worsened due to her husband’s gaining of bad habits.  Nothing eventful happened until early 2015.  In February 2015, together with her husband, the applicant took out a loan to support her husband’s small business.  However, in April 2015, a fire destroyed their business and they started to default the loan payments.  Under great pressure, the applicant’s husband became abusive and assaulted the applicant with bare hands.  Later, their creditor visited with six underlings and attacked the applicant with bamboo sticks.  Before he left, he also posed death threats.  Meanwhile, her husband also assaulted her after the attack incident.  As the applicant was unable to repay the creditor within the deadline, she was threatened and assaulted again.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 23 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:

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.  In elaboration, the Director found that (i) there were no substantial grounds to believe that the applicant’s claimed risk of harm was real or foreseeable [12]; (ii) the disputes were private in nature without state involvement [13]; (iii) state protection would be available to her [14]-[17]; and (iv) internal relocation was a viable option [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 November 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [7]; [54]. 

9.The Board recapped the applicant’s claim and her personal background, as well as her oral testimony at the hearing [34]-[76].  At the outset, the Board found that the applicant was unable to recall the details of key aspects and material events; that there were inherent inconsistencies in her oral testimonies and written statements; that there was no objective and independent evidence to collaborate her claims; that she delayed in seeking protection in Hong Kong; that there was no evidence or claim that she was harmed by others in Indonesia other than her husband and creditor; and that her evidence on when she last contacted the creditor or her husband was vague and inconsistent [77]-[82].  In these premises, the Board concluded that the applicant was not a credible witness [83]. 

10.On the basis of lack of credibility, the Board found that the applicant’s claimed risk of harm from either her husband or the creditor was not substantiated.  Her claim was therefore rejected and her appeal dismissed.  

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

11.The applicant has filed Form 86 dated 4 June 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant only attached a copy of the Board’s Decision, but she did not set out any specific 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.The Board had, for the reasons given in paragraph 9, supra, rejected the applicant’s evidence and found that she failed to establish that she will be subjected to real risks of being harmed or killed if she returns to Indonesia.

17.The applicant has raised no valid ground to challenge the Board’s Decision.

18.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.

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 23^rd day of June 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