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

HCAL 1459/2019

[2023] HKCFI 3052

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1459 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 9 May 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 date was fixed for her to appear before the Court on 6 September 2023. However, she was absent without prior notice to the Court. Her application is therefore dealt with on paper.

The applicant

3.The applicant is a national of the Indonesia. She last arrived in Hong Kong on 14 July 2013 to be employed as a domestic helper and upon completion of her contract, she was allowed to remain in Hong Kong until 10 October 2014. Her employment contract was completed. However, she did not depart and became an overstayer since 11 October 2014. Over a year later on 13 May 2016, she surrendered to the Immigration Department and subsequently raised a non-refoulement on 27 October 2016 on the basis she would be harmed or killed by her husband (Suwandi) as she was unable to settle a debt incurred by him.

4.In short, the applicant claimed that Suwandi began to develop drinking and philandering problems in 2011. To sustain such degeneracy, he borrowed money from a loan shark in the sum of 30 million Indonesian rupiah and named the applicant as a guarantor. A loan document was purportedly signed but she was only made aware of this via Suwandi. She was able to make repayment (10 million Indonesian rupiah) to the loan shark in 2011 and the deadline to settle the outstanding amount was extended to 2013. However, she discovered Suwandi’s philandering and did not make payment in 2013. On December 2013, Suwandi called the applicant and threatened to kill her if she did not make payment to settle the loan. He would call her every night thereafter and as a result, she had to change her mobile number to avoid contacting him. In the same month, her mother was also harassed by Suwandi and he told her that he would kill the applicant if she did not return to Indonesia to repay the loan. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 13 April 2018 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 dismissed the applicant’s claim. In elaboration, the Director found that: (i) the absence or low intensity and frequency of past ill-treatment inflicted by Suwandi indicated a small future risk of harm if refouled, as he never inflicted any physical injury on the applicant and only made verbal threats never materialized [12.1]; (ii) there was no real intention of Suwandi to kill her as his real intention is to demand her to pay the loan shark; and even assuming there was a real intention to cause harm, the dispute was private in nature without any involvement of the state [12.2] and [12.3]; (iii) state protection was available based on objective and credible COI [13] – [17]; (iv) internal relocation was available and reasonable [18].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 25 April 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence and answered the Board’s questions with the assistance of an interpreter.

8.In essence, the Board did not accept the majority of the applicant’s claim as her evidence was found to be incredible. This included the inconsistent conduct of her parents who would allow Suwandi to continue to live with them despite the threats from the loan shark against them; and not seeking police assistance nor evicting him in the circumstances [57]. Whilst the Board accepted the alleged loan may have been extant, it did not accept the threat to be credible as the loan shark would not have delayed taking action against Suwandi in hopes that the applicant will make payment [61]. In any event, the Board held she could safely relocate to elsewhere in Indonesia as she would be able to gain employment given her previous working experiences [62]. In considering the applicable grounds of non-refoulement protection, the Board held there was no instigation by the state [68] and further found in respect of internal relocation, she would be able to safely and reasonably relocate to other regions in Indonesia, such as Malang, Surabaya or Jakarta [70].

9.For the above reasons, the Board rejected the applicant’s claim 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 29 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the ground that the hearing bundle was given to her shortly before the Board’s hearing and the documents in English were without interpretation; that she was confused at the hearing, but she had answered all the questions put to her by the Board; and that the Board relied upon the source of news which is not officially recognized or it is simply hearsay, resulting in the Board’s speculation that it is safe for her to return to Indonesia.

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’s evidence was not credible and she had failed to establish that she has any real risk of harm as she alleged if she returns to Indonesia.

16.The grounds in paragraph 11 do not assist her. There was no complaint by her before the Board that she did not have enough time to prepare for the hearing. The Court of Appeal held that she is not entitled to interpretation service all the time[1] and yet, she was able to answer all the questions put to her by the Board. It is only her personal opinion that the Board relied upon hearsay evidence in the assessment of her appeal.

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

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 7^th day of December 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