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

HCAL 1145/2019

[2023] HKCFI 2809

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1145 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 6 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.

The applicant

3.The applicant is a national of Indonesia.  She had been a foreign domestic helper in Hong Kong since 2004.  Her last employment contract was terminated on 10 January 2010.  She applied for an extension of stay and was permitted to stay until 26 January 2010.  However, she did not depart and had overstayed since 27 January 2010.  On 3 November 2011, she was arrested by the police.  On 30 November 2011, she raised a torture claim, which was eventually rejected on 3 October 2013.  On 27 August 2013, she lodged a non-refoulement claim and was assessed on all applicable ground other than that on Torture risk[1]. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark and her father due to an outstanding debt.

4.According to the applicant, her father borrowed the loan from the loan shark in around 2002 to 2004 for his food trading business.  In 2006, the food trading business deteriorated and the applicant’s father went bankrupt.  He asked for extension of time for the loan payment but failed.  As a result, he had to sell most of their properties.  Yet, the sales proceeds was still insufficient to settle the loan.  In 2008, when the applicant returned to Indonesia, she learnt about the outstanding loan and the loan shark’s harassments to her family members.  In February or March 2009, the loan shark further demanded the applicant to marry him to settle the loan.  The applicant refused and received death threats from the loan shark.  The pressure from the loan shark escalated in October or November 2009. 

5.After the premature termination of her employment contract, her father was furious and scolded her for not contributing to the family.  He also asked the applicant not to return home, otherwise he would make her marry the loan shark.  Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 9 November 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 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”);

b.   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

c.   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 absence or low intensity and frequency of past ill-treatments indicated a small future risk of harm [13]; (ii) there was no evidence that the loan shark or her father intended to cause serious harm or even kill her [14]-[16]; (iii) state protection would be available to her [17]-[18]; and (iv) internal relocation was a viable option [19]-[22]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 18 February 2019, the Board conducted an oral hearing for her appeal, during which she testified.

9.The Board recapped the applicant’s claim, her personal background and her oral evidence at the hearing [26]-[58].  Having considered the evidence, the Board made the following findings.  It first noted that the applicant’s evidence before the Director and the Board was inconsistent [62].  For example, she provided different years when her father took out the loan; her evidence on when she last contacted her father was inconsistent; her evidence as to whether she personally met the loan shark was also contradictory; and she left out the information that the loan shark posed death threats to her in her torture claim form.  Furthermore, the Board observed that the applicant was unable to provide any details as to her father’s threats [63]. 

10.In these premises, the Board rejected the fundamental basis of the applicant’s claim.  Her non-refoulement claim was therefore rejected and her appeal dismissed.

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 30 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, for the reasons given above, rejected the applicant’s evidence.  The applicant has raised no valid ground to challenge the Board’s Decision.

17.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 14^th day of November 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