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

HCAL 467/2023

[2023] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 467 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 24 February 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3.According to the record, the applicant was detained by the Immigration Department but has been released.

The applicant

4.The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper and her last employment visa permitted her to stay until 19 April 2022 or two weeks after the termination of the employment contract, whichever was earlier.  On 8 February 2022, her employment contract was prematurely terminated.  She did not depart within the time limit and had overstayed since 23 February 2022.  On 19 May 2022, she was arrested by the police.  On 3 September 2022, she lodged a non-refoulement claim.  The basis of her claim was on a fear of risk of harm from her creditor due to an outstanding debt.

5.In brevity, the applicant took out a loan with the creditor in early-2021 to fund her husband’s grocery business in their home village.  As collaterals, her husband gave the creditor copies of the titles over her parents’ house and those of her vehicles.  However, after Covid-19 hit, her husband’s business was no longer profitable.  Since her salary could barely cover the family’s expense, she defaulted the loan payments.  Since June 2021, the creditor and her underlings had been harassing the applicant and the applicant’s family by telephones or personal visits, demanding the repayments of the loan. Meanwhile, the applicant’s husband blamed her for the default.  Till August 2022, the applicant still received death threats from the creditor.  As a result, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 17 November 2022 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) her creditor had possessed no intention to seriously harm or even kill her [13]; (ii) the risk of harm from the creditor, if any, was localized [14]; (iii) state protection would be available to her [15]-[20]; and (iv) internal relocation was a viable option [21]-[22].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 9 February 2023, the Board conducted an oral hearing for her appeal, during which she testified [22].

9.At the outset, the Board found that the applicant’s evidence was inherently consistent as to the existence of a loan dispute with the creditor [44].  It proceeded to assess her claim under the individual grounds.  Firstly, the Board found that the loan dispute was a private matter [46] and the country of origin information showed that state protection would be available to her [47]-[64].  Secondly, the creditor never materialized any death threats against the applicant or her family members.  The creditor simply made phone calls to demand repayments [66].  Thirdly, there was no report on the applicant’s mental or physical injuries nor were any injuries inflicted on the applicant’s family members [74]-[76].  Fourthly, there was no evidence that the applicant was adversely targeted by the Indonesian government [84].

10.In these premises, 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 24 March 2023 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant had only attached a copy of the Board’s Decision, but 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 Decision 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 her claim that she has real risk of harm or being killed upon her return to Indonesia.  It therefore dismissed her appeal.

17.There is no valid ground from the applicant to challenge the Board’s Decision.

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 leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 10^th 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