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

HCAL 1193/2019

[2023] HKCFI 2552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1193 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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.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 entered Hong Kong as a foreign domestic helper. However, her last employment contract was prematurely terminated on 17 June 2015. She did not depart within the time limit and had overstayed since 2 July 2015. On 6 May 2016, she surrendered to the Immigration Department. On 11 April 2017, 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 two loan sharks due to the family dispute and loan dispute respectively.

5.In short, the applicant took out two loans from the loan sharks for her mother’s medical expenses and her husband’s business. However, she defaulted both payments. Worse still, her husband used the loan sum to drink and gamble. He demanded the applicant to take out a third loan but the applicant refused. As a result, her husband became abusive and assaulted her and her sons. Yet, she stated that she lost contact with her husband in 2002. Since 2004, the applicant had started her overseas employments. As her salary was insufficient to cover the loans, the loan sharks had been chasing her for repayments with threats. She claimed to be assaulted by the loan sharks but forgot the frequency. She also claimed that the loan sharks hit her mother. Meanwhile, her husband also visited her mother’s house and posed death threats. Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 May 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 her claim. In elaboration, the Director found that (i) her perceived risk of harm was groundless [14]-[17]; (ii) state protection would be available to her [18]-[22]; and (iii) internal relocation was a viable option [23]-[27].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 23 January 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter in the Indonesian and English languages [5].

9.The Board recapped the applicant’s claim and her personal background [26]-[38]. It also considered the applicant’s oral testimony. Having considered the evidence, the Board noticed that the applicant contradicted herself in relation to the details of the loans. For example, she was inconsistent about which loan she borrowed first; she could not remember the dates of the loans; and she was unclear about the sums of the loans [44]-[46]. Meanwhile, her accounts about the threats and harms from the loan sharks were generalized and vague [47]-[50]. The Board also expressed concerns about her omission to mention the physical harms to her and her family from the loan sharks in the non-refoulement claim forms [51]. It refused to accept the applicant’s explanation [52]. If the applicant was in fact attacked, it was unreasonable that she would not remit her salaries to the loan sharks to ease the tensions [54]. In these premises, the Board found that the applicant’s claim was not credible [55]. Further, state protection would be available to the applicant [56]-[57].

10.As to the claimed risk of harm from her husband, the Board found that the applicant’s evidence in this regard was vague and lacked details [58]-[61]. Besides, she had lost contact with her husband since 2002 and she had not provided any credible evidence to suggest that her husband had attempted to locate her since then. In this light, the Board also found that the claimed risk of harm from her husband after a long lapse of time was not credible. In passing, the Board also rejected the applicant’s claimed risk of harm to return as a single woman without family [64]-[69].

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 6 May 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 is not satisfied with the decision given by the Board and she cannot go back to her country because she has problem there.

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 applicant has raised 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 17^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