Dwi Indra Sari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1014/2019

[2023] HKCFI 1964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1014 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 March 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 on 21 September 2012 as a foreign domestic helper. She was allowed to stay until 21 September 2014 or two weeks after the termination of her employment contract. Her employment contract was however prematurely terminated on 28 September 2013. As such, her limitation of stay was only until 12 October 2013. Yet, she did not depart and had overstayed since 13 October 2013. On 10 April 2015, she surrendered to the Immigration Department. On 12 October 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 creditor Wayan.

5.In short, the applicant borrowed money from Wayan for her grandmother’s medical expenses in around 2008. However, her insignificant income prevented her from repaying the loan. After her default, Wayan often visited her house with some underlings, assaulting and molesting her and, on one occasion, attempting to rape her. The applicant thus escaped to Jakarta to attend a seven months training for foreign domestic helper jobs. She did not encounter any threats from Wayan as he did not know her new numbers. While the applicant was once informed that Wayan stopped looking for her, in the last contact with her daughter, she was told that Wayan still visited her house frequently. As a result, the applicant sought protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 January 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) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable option [15].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 19 September 2018 and 19 December 2018, the Board conducted an oral hearing for her appeal, during which she testified.

9.The Board found that her oral testimony was consistent with her written statement [50]. Yet, the Board was skeptical as to why the applicant could borrow such a sum, equivalent of HK$42,000, given the fact that she had little asset. It also inquired the applicant of the medical treatments granted to her grandmother [52]-[57]. It probed into whether the applicant could repay Wayan or negotiate a settlement of the loan with him since she had been earning salaries before the termination of her employment contract. It noted that the applicant could settle the loan if she was minded to do so; that Wayan did not hurt her daughter who still resided in the home village neither did he take the applicant’s property; and that he did not contact the applicant for the past eight years [58]-[68]. The Board also cast doubt on the applicant’s use of her salary [69]-[73].

10.In these premises, the Board concluded that the applicant’s claim lacked credibility. It observed that there was no documentary evident to support her claim; that it was unreasonable for her to take out such a huge sum as a loan; that, despite she could afford to settle the loan with her salary, she chose not to; and that she could easily relocate to other areas [74]-[76].

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

13.In her affirmation in support of her application, the applicant said she does not want to go back to Indonesia because she is unable to pay off all the money she had borrowed from her creditor, who will kill her and that she only feels safe in Hong Kong.

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, for the reasons given above, rejected her evidence as incredible and found that internal relocation was an option open to her. The grounds stated in paragraph 13, supra are not valid 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 August 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