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

HCAL 987/2019

[2023] HKCFI 1696

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 987 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 28 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing and her application is dealt with 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. After her employment contract in Hong Kong was terminated on 11 December 2009, she was permitted to stay as a visitor until 25 December 2009. However, she did not depart and had overstayed since 26 December 2009. On 8 June 2010, she was arrested by the police for overstaying. On 18 and 27 November 2015, 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 husband’s creditors.

5.According to the applicant, shortly after their marriage, the applicant found out about her husband’s gambling and drinking problems. In around early November 2002, her husband’s friends visited their house, demanding the applicant to repay her husband’s loan. Thereafter, some unknown men also came to her parents’ house and required the repayment of her husband’s loans. Her husband even told the creditors to take the items inside her parents’ house to settle the loan. Meanwhile, the applicant claimed that, since 2002, her husband had been physically abusive towards her. The first incident happened on 26 December 2002 when the applicant was three months pregnant with their first born. She was assaulted by her husband. Yet, because she was unable to pay the complaint processing fee, the police refused to take her complaint. Thereafter, her husband had been assaulting her constantly. The worst incident happened in August 2004 when she was pregnant with their second child. Her husband assaulted her and was holding a knife threatening her to take out a loan to settle his loans. At the same time, the creditors kept coming to her parents’ house demanding for loan repayments. Unable to tolerate the harassments and threats from her husband and the creditors, the applicant eventually decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 9 of the Notice of Decision dated 13 March 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 as her claimed fear of harm from her husband or the loan sharks was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to her [17]; and (iii) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 December 2018, the Board conducted an oral hearing for her appeal.

9.Having considered the evidence, the Board made the following findings. It accepted that the applicant was a victim of domestic violence and was subjected to the threats from the creditors [41]. However, the Board also found that she would not face the similar antagonism because of the lapse of time. On her own evidence, she was not contacted by any of them since 2008. Meanwhile, while she was in Banten for 7 months before coming to Hong Kong, neither her husband nor the creditors were able to locate her. There was also no evidence that her husband still held adverse interests on her. Further, no injuries that attained a minimum level of severity were inflicted on her [43]. In any event, state protection and internal relocation were both available to the applicant [49]-[59]; [71]-[76].

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 dated 11 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said that the Board’s findings are biased.

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 grounds as set out in paragraph 12 above do not assist her application.

17.There is 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 3^rd day of July 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