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

HCAL 2377/2019

[2024] HKCFI 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2377 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 12 July 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”), I shall deal with her application on paper.

The applicant

3.The applicant, aged 38, is a national of Indonesia. She had been working in Hong Kong as a foreign domestic helper since 2011. She overstayed in Hong Kong after her contract was prematurely terminated on 16 October 2016. She was arrested by the police on 7 April 2018 for the offences of (i) using a forged identity card; (ii) obtaining property by deception and (iii) breach of condition of stay. On 16 April 2018, the applicant raised a non-refoulement claim while being detained. The claim was made on the basis that, if refouled, the applicant would be harmed or killed by her creditor (“the loan shark”).

4.According to the applicant, she borrowed money from the loan shark in around 2008 in order to repay the gambling debts of her father and to support her family. The loan shark was also an owner of a guesthouse, which the applicant later worked in as a cleaner after taking out the loan. Later on, the applicant resigned because she refused the loan shark’s request to sleep with her guests. Upon the applicant’s resignation, the loan shark imposed very strict and harsh repayment terms for the loan. The applicant later obtained employment to work as a baby sitter. She managed to repay a few instalments, but eventually failed to make further repayments.

5.In order to repay the loan, the applicant worked as a foreign domestic helper in Singapore in around 2009. She then came to Hong Kong on 3 January 2011, to work also as a foreign domestic helper. The applicant would remit money to her mother, who would then help her repay the loan shark. In about September 2011, the applicant ceased making remittance to her mother due to the premature termination of her employment contract in Hong Kong. Her mother informed her that the loan shark came to her home with three men. They destroyed the furniture and made death threats against the applicant’s life. The applicant later resumed remittances to her mother upon securing further employment, but there were times when her mother could not afford making any repayment to the loan shark because her father took the remitted money for gambling. The applicant claimed that there was an occasion that her father had a fight with the loan shark’s subordinates. He injured his hand when they came demanding loan repayment, and he was angry at the threats by the loan shark against the applicant.

6.The applicant maintained contact with her family. She was informed by her mother in April 2018 that the loan shark was still looking for her and demanding repayment of the loan. She was of the view that the police could not offer protection to her because they were corrupted and she could not afford bribing them. She also thought internal relocation within Indonesia not viable as she did not have any relatives elsewhere and did not have the financial means for relocation.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 30 August 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the past behaviours of the loan shark showed no real intention to severely harm or kill her [12]; (ii) state protection will be available to her upon her return [14]-[15]; (iii) internal relocation is viable [13], [16]-[20] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[32] or Torture risk [33]-[36].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. In her Notice of Appeal/Petition, the applicant made a new claim that her grandfather had been beaten to death by the loan shark and subordinates because she failed to repay the loan. On 27 May 2019, the Board conducted an oral hearing with an interpreter. During the hearing, the applicant disclosed for the first time that the loan agreement had an express warning that she would have to pay for her life if she failed to repay the loan.

11.Having considered the applicant’s evidence, the Board found that both the alleged threat contained in the loan agreement and the killing of the applicant’s grandfather were the applicant’s recent invention designed to bolster her claim. The Board was of the view that the assertions made by her were untruthful and fabricated [79]-[99]. It concluded therefore that the applicant’s case failed to meet any of the requirement under Persecution risk [26]-[31], [102], BOR 2 and BOR 3 risk [32]-[39], [103]-[104] or Torture risk [40]-[45], [105]-[107].

12.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s decision.

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

13.The applicant has filed Form 86 dated 16 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the applicant’s affirmation in support of her application, she did not state any specific ground.

DISCUSSION

15.“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).

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

17.“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.”

18.The applicant has raised no valid reason to challenge the Board’s Decision.

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 20^th day of February 2024

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