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

HCAL 674/2023

[2023] HKCFI 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 674 of 2023

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 21 February 2023 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”), her application is dealt with on paper.

The applicant

3.The applicant is a national of Indonesia.  She last entered Hong Kong as a foreign domestic helper on 15 December 2019 and her permission to stay was later extended to 14 March 2023 or two weeks after the termination of her employment contract.  On 7 February 2022, her employment contract was prematurely terminated.  She did not depart and had overstayed since 22 February 2022.  On 13 July 2022, she was arrested by the police for overstaying.  On 17 July 2022, 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 Mimin. 

4.According to the applicant, she borrowed the loan from Mimin for the renovation of her marital house.  From February 2017 to the end of 2020, the applicant was able to repay 3 million rupiahs to Mimin for the interest payments.  In December 2020, the applicant found out the extramarital affair of her husband and she decided to divorce her husband.  Since January 2021, the applicant defaulted the repayments.  In February 2021, Mimin telephoned her and demanded for the settlement of the loan.  She made phone calls of threats for seven times from February 2021 to January 2022 to the applicant.  After the applicant changed her phone number in February 2022, she stopped receiving phone calls from Mimin.  Meanwhile, Mimin also visited the applicant’s maiden home.  As the applicant learnt that Mimin was violent, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 16 September 2022 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.  In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[15]; (ii) state protection would be available to her [16]-[19]; and (iii) internal relocation was a viable option [20]-[24]. 

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 16 November 2022, the Board conducted an oral hearing for her appeal, during which she was legally represented. 

8.The Board considered the applicant’s claim, the oral testimonies at the hearing, and the closing submissions from the parties, as well as the country of origin information (“COI”).  Having considered all the information, the Board made the following findings.  The Board considered the applicant to be a credible witness and the significant parts of her claims to be true [71]. Nevertheless, the Board did not accept that the applicant was in need of non-refoulement protection [71].  Despite it accepted the existence of the loan [73] and the applicant’s outstanding payments [74], as well as threats from Mimin [76], it found that the threats from Mimin was only an effort to recover the loan and that there was simply no evidence that the threats from Mimin reached a requisite severity of harm [77].  Overall, the Board found that the conducts of Mimin did not show any intention to cause harm or even kill the applicant or her family members [78]. 

9.Meanwhile, the Board found that the applicant’s failure to seek alternative solution to settle the loan undermined her credibility [79].  Also, her delay in seeking non-refoulement protection was inconsistent with someone who genuinely had a fear of harm [80].  As a result, the Board was not satisfied that the applicant faced a real or substantial risk of harm from Mimin. 

10.In any event, state protection and internal relocation were both viable alternatives for the applicant [84]-[92].     

11.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 9 May 2023 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant did not set out any specific ground.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The Board had considered the applicant’s evidence and found that she failed to establish that she has the real risk of being harmed or even killed if she returns to Indonesia.

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

19.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.

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

CONCLUSION

21.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 30^th 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