Case Document

100%Judiciary

HCAL 2459/2019

[2023] HKCFI 1636

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2459 of 2019

BETWEEN
	Kani	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 present 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 26 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the applicant appeared before the Court on 27 March 2023.

The applicant

3.The applicant is a national of Indonesia. She entered Hong Kong on 24 November 2017 as a visitor and was permitted to stay until 24 December 2017. She did not depart and had overstayed since 25 December 2017. On 7 March 2018, she was arrested for overstaying. By way of the written representations dated various dates in March 2018 and April 2018, she lodged a non-refoulement claim on a claimed risk of harm arising from a loan dispute.

4.According to the applicant, her late father took out a loan with a loan shark named Yudi in 2010. However, he passed away in 2013, leaving the loan unrepaid. Yudi had been chasing the applicant’s mother for repayments, asking her to arrange a marriage between him and the applicant as the settlement of the loan. In August 2016, when the applicant returned to Indonesia from her overseas employment, Yudi forced her to marry him. Met with her refusal, Yudi threatened to kill her and her mother if they failed to settle the loan. Nevertheless, Yudi gave them two months’ extension to gather the money. In October 2016, Yudi came with several body guards to collect the debt. As they were unable to repay, Yudi assaulted the applicant for around 20 minutes and demanded her to marry him again. After the attack, the applicant stayed at home until January 2017 when she left for Hong Kong for employment. In September 2017, the applicant returned home again after the termination of her employment contract. She stayed with her friends and nothing eventful happened. Yet, upon her mother’s advice, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 21 November 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:

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

ii.    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”);

iii.   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

iv.   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 her claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13.1]; (ii) Yudi did not possess the intention to seriously harm or even kill her [13.2]; (iii) there was no evidence that Yudi was powerful and influential [13.3]; (iv) her fear of harm was based on hearsay information [13.4]; (v) her conducts were inconsistent with someone who genuinely feared a risk of harm [13.5]; (vi) state protection would be available to her [14]-[17]; and (vii) internal relocation was a viable option [18]-[20].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 24 May 2019, the Board conducted an oral hearing for her appeal, during which she testified.

8.The Board recapped the applicant’s claim and her personal background [7]-[19], as well as summarized her oral evidence at the hearing [20]-[35]. Having considered all the evidence, the Board found that the applicant’s claim was not credible [38].

9.The Board found that the applicant’s claim of the outstanding loan based purely on her own written and oral evidence. Yet, it was full of inconsistencies. For example, she was inconsistent as to whether there was a written agreement of the loan; that it was illogical that there would be a term in a loan agreement for an arranged marriage; that the applicant’s evidence about Yudi’s demand of marriage was unreasonable; that Yudi did not inflict any serious harm on the applicant, even when he had the chances to do so; that it was unlikely that Yudi would hold the applicant accountable for the loan instead of her mother; that the applicant’s own behaviors of staying at home after the attack showed an absence of fear of harm; and that state protection and internal relocation were both viable options for the applicant [36]-[46].

10.For the above 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

11.The applicant has filed Form 86 on 26 August 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her statement attached to Form 86 in support of her application, the applicant complained about the Director. Since she had brought the matter before the Board against the Director’s Decision, her leave application has to be confined to the Board’s Decision^{^[1]}. I shall therefore treat such complaints against the Board.

i.     The Board did not take into account the right to life.

ii.    The Board did not pay due attention to state acquiescence.

iii.   The Board did not consider her case properly and did not take into account the COI in her favour.

iv.   The Board did not take into consideration corruption and state incompetency in his country.

v.    The Board had failed to attain high standards of fairness.

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 Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she understands the Board’s Decision; that she only wants to extend her stay in Hong Kong so that she can get the permit to remain in Hong Kong; that she had no money to bribe the police or to live elsewhere. These reasons do not assist her application.

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.As to the grounds raised by the applicant in paragraph 12 above, all of her grounds are her bare assertions without any evidence in support. They fail.

17.The Board has, for the reasons given supra, rejected her evidence and found that state protection and internal relocation are available to her if she returns to her country.

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

CONCLUSION

19.I refuse to grant 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

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 23/6/2023 Kani Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 23/6/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 14651/18/12/8/I1569 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4055/18 (formerly RBCZ 10418/18)(T6I123) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

[1] See Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018)

“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

Cites 5 cases

Cases cited in this judgment

Nupur Mst v. Director of Immigration