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

HCAL 973/2019

[2023] HKCFI 2483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 973 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 present 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 1 April 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”), a hearing was fixed for her and she attended the Court on 1 February 2023.

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 had been working in Hong Kong as a foreign domestic helper and she last entered Hong Kong on 27 July 2015. However, her employment contract was prematurely terminated on 10 August 2015 and she was required to leave on or before 24 August 2015. She did not depart and had overstayed since 25 August 2015. On 23 December 2015, she was arrested by the Police for overstaying. On 19 January 2016, she lodged her non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by a moneylender for her default of an outstanding loan and by her husband because he was angry about her debt.

5.In brevity, the applicant borrowed a loan from the moneylender in 2005 for her grocery shop. She was only able to repay the required monthly sum for one month due to the limited income from the shop. In 2006, her grocery shop was closed down. She started to default the repayments. The moneylender had been chasing the applicant for repayments with death threats. He took the applicant’s land deed and gave the applicant’s family some time to move out. Meanwhile, the applicant’s husband, upon learning the financial problem in the family due to the applicant’s debt, became abusive towards her. Unable to cope with the violent acts from her husband, the applicant escaped to Malang before coming to Hong Kong and later sought protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 21 September 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 [11]-[14]; (ii) state protection would be available to her [15]-[18]; and (iii) internal relocation was a viable option [19]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 18 December 2018, the Board conducted an oral hearing for her appeal.

9.The Board recapped the applicant’s claim and her personal background [9]-[24]. Having considered the evidence, the Board rejected her claim. It found that there was little or no information about the applicant’s husband and it was merely a case of a marriage turned sour [28]-[29]. As to the claimed fear of harm from the moneylender, the Board found that it was illogical for the moneylender to kill the applicant as he would be unable to retrieve the debt [31]. There was also no evidence that the moneylender possessed an intention to seriously harm or kill her [33]-[35]. In addition, given the descriptions of the husband and the moneylender, the Board refused to accept that they were capable of locating the applicant everywhere in Indonesia and thus found that internal relocation was available for the applicant [36]-[42].

10.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

11.The applicant has filed Form 86 dated 10 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 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 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 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.

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

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

Dated the 5^th day of October 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