Case Document

100%Judiciary

HCAL 1332/2021

[2023] HKCFI 2570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1332 of 2021

BETWEEN
	Rifa Hamidah	Applicant
	and
	Torture Claims Appeal Board/	Putative
	Non-refoulement Claims Petition Office	Respondent
	and
	Director of Immigration	Putative
		Interested Party

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 3 September 2021 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”), her application is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Indonesia. She came to Hong Kong as a domestic helper in 2011. Her employment was prematurely terminated and she applied for extension of time to stay in Hong Kong. She was permitted to stay as a visitor until 3 April 2012. However, she did not depart and overstayed. On 31 July 2013, she was arrested and was later convicted of the offence of breach of condition of stay. She was sentenced to a suspended sentence and a removal order was issued on 20 August 2013. On 8 January 2014, she was arrested by police for soliciting for an immoral purpose and taking employment without the Director’s consent. She was convicted and sentenced to 15 months’ imprisonment. On 19 June 2014, she lodged her non-refoulement claim by way of a written signification during her imprisonment. After her discharge from prison, the Immigration Department wrote to her for her application of non-refoulement claim. She did not respond. On 14 March 2021, she was arrested by police and was transferred to the Immigration Department. On 1 April 2021 and 15 April 2021, she applied for resumption of her non-refoulement claim. Her application was acceded to. Since then, she was detained in the Castle Peak Bay Immigration Centre.

5.The applicant’s claim is on the basis that, if refouled, she will be harmed or killed by the loan-shark because she was unable to repay her ex-husband’s loan. Her husband had used her name as guarantor to borrow money from the loan-shark. In around May 2010, the loan-shark came with some people, looking for her ex-husband, who was not home. The loan-shark warned her that she had to repay her ex-husband’s loan. She had a quarrel with the loan-shark. However, she was afraid and she went to live in her maternal uncle’s home, which is 30 km from her home. She had stayed there for a week. She did not report the matter to police because she was too scared to leave her uncle’s premises. Upon advice of her uncle, she came to Hong Kong. Details of her claim are set out at [7] of the Notice of Decision dated 10 June 2021 by the Director (the “Director’s Decision”). She further said that state protection is not viable because the administration of the state is corrupt and internal relocation is also not viable because she does not have family ties in other region and the loan-shark is powerful and strong.

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 claim was not substantiated as evidence showed that the loan-shark did not have any real intention of harming her or killing her upon her return [16]; that state protection would be available to her [23]; and that internal relocation would be a viable option to her [26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 13 August 2021, the Board conducted an oral hearing for her appeal, during which she gave evidence.

9.The Board had raised questions for the applicant. Having considered her evidence, the Board found a large number of discrepancies between her answers in the NCF and screening interview and her evidence at the hearing, particulars of which can be found at [33]. For the reasons set out in paragraph 34 of the Board’s Decision, the Board came to its conclusion at paragraph 35:

“The inconsistencies in her evidence are glaring and indicative that she has exaggerated the risks and danger from the money lender at her home village. It is apparent that though the money lender had threatened her, her mother and daughter remained unaffected. Her evidence is unreliable and her claim fanciful and incredible and her claim of risks and danger on her return to Indonesia is implausible.”

10.For the above reasons, the Board found the applicant’s claim failed on all applicable grounds 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 23 September 2021 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific ground in support of her application.

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.For the reasons given in paragraph 9 above, the Board found that the applicant failed to establish that she has any real risk of harm by the loan-shark if she returns to Indonesia.

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 19^th day of October 2023

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 19/10/2023 Rifa Hamidah Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19/10/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 18185/21/6/163/I2054 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 603/21 (formerly RBCZ 10589/21) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)