Nurhayati Bt Sahuri Soka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1616/2023

[2023] HKCFI 2849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1616 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 15 June 2023 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.

The applicant

3.The applicant is a national of Indonesia. She came to Hong Kong to work as a domestic helper on 20 February 2020. Her employment contract was prematurely terminated on 8 November 2020. She did not depart Hong Kong as prescribed in her working visa and had been overstaying since 23 November 2020. She was arrested by police on 29 July 2021 for overstaying. She was granted bail. She did not answer her bail and was arrested by police on 17 December 2021 for theft and gambling in a gambling establishment. She was convicted and sentenced to 3 months’ and 6 days’ imprisonment respectively. By way of written signification dated 15 February 2015, she revised non-refoulement claim. She claimed that if refouled, she would be harmed or killed by her husband’s creditor and his subordinates.

4.Briefly, one day in 2019, a person who claimed to be her husband’s creditor knocked on her door and alleged that he husband was indebted to him and demanded her to repay her husband’s loan as she was the guarantor for his loan. He did not threaten to harm or kill her if she failed to do so. Nor had he threatened or caused trouble to her family members. She confronted with her husband as to why she had become his guarantor without her knowledge. Her husband brushed her aside and told her to repay the loan for him. She had no knowledge of the details of the loan or the whereabouts of the creditor. She did not report the matter to police because she feared that the creditor would take revenge on her. She then came to Hong Kong to work as a domestic helper. She did not return to Indonesia because she feared that she would be harmed or killed by the creditor. Detail of her claim are set out at [6] of the Notice of Decision dated 29 March 2023 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director considered that her claim was not substantiated and dismissed it. In elaboration, the Director found that: (i) the risk of harm was assessed to be low as there was no evidence that the creditor had threatened or harmed her [12]; (ii) there was no evidence to show that the creditor had the intention of harming her or her family [13]; (iii) the loan dispute is a private matter and did not involve the Indonesian government and state protection was available [14] – [18]; and (v) internal relocation was a viable option [19] – [23].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 12 June 2023, the Board conducted an oral hearing for her appeal, during which she elected to give evidence to the Board [20].

8.Having considered the totality of the evidence, the Board found that the problem was a private monetary matter [44]; that there was no evidence to show that the state was involved [87] and therefore state protection was available to the applicant [45] – [67]; that the creditor had taken no concrete action to hurt the applicant and the creditor had never inflicted verbal life threats against her or her parents who are currently living in Indonesia after the loan borrowing [69]. In a nutshell, the Board, on the totality of evidence, found that there was no foreseeable real, personal and present risk that the applicant would be subjected to if she returned to Indonesia. [89]

9.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

10.The applicant has filed Form 86 dated 11 September 2023 for leave to apply for judicial review of the Board’s Decision.

11.The applicant did not raise any specific ground in support of her application.

DISCUSSION

12.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).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.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.”

15.For the reasons given in paragraph 8 above, the Board found that the applicant failed to establish that she has any real risk of harm by the creditor if she returns to Indonesia.

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

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.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 16^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