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

HCAL 992/2021

[2024] HKCFI 647

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 992 of 2021

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 24 May 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) and the Director’s decisions.  She had appealed the Director’s decisions to the Board. Therefore, her application fails in limine and is dismissed.[1]

2.The applicant requested an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing on 29 August 2023 was fixed for the applicant.  Notice of the hearing was sent to her last known address on 3 August 2023.  Service of the notice was deemed to be effective on the next working day by virtue of Order 65, rule 5(2)(b) and 7(2) of the RHC.  The notice was returned.  Enquires with the Immigration Department confirmed that the address to which the notice of hearing was served was her last known address and she was nowhere to be located.  In the circumstances, she was deemed to have notice of the court’s hearing.  She was absent on the date of hearing.  Her application is therefore 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 arrived in Hong Kong on 16 March 2018 to work as a domestic helper.  Upon termination of her contract, she departed Hong Kong on 15 April 2018.  She returned to Hong Kong on 6 June 2018 on the same previous condition but her contract was again prematurely terminated on 1 May 2020.  However, she did not depart and became an over-stayer.  She was subsequently arrested by police on 21 July 2020 and she raised a non-refoulement claim on 7, 9, 11 and 16 August 2020.  Her claim is on the basis that, upon refouled, she would be harmed or killed by a loan shark (called “Mr”) and his subordinates due to her parents’ loan dispute.

5.According to the applicant, her parents borrowed 50 million Indonesian Rupiah from the loan shark in April 2018 in order to pay for her brother’s circumcision.  The loan shark threatened her parents that if the loan was not repaid, the applicant would have to marry him.  Her parents had made partial repayments in September 2020 but were unable to repay ever since.  When her parents requested her to comply with the loan shark’s marriage demand, she refused. She has informed the Director from around April 2018 to 2020 that the loan shark and his subordinates had visited her parents’ home once a month to demand repayment.  They also verbally threatened her parents that if they failed to repay, they would kill the applicant as she refused to marry the loan shark. There was no physical assault during these visits.  Details of her claim are set out at [6] of the Notice of Decision dated 24 November 2020 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 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.  In elaboration, the Director found that: (i) there were no substantial grounds to believe that there was any real and substantial risk of her being harmed or killed by the loan shark or his subordinates, as based on the fact that they have never caused her or her family any physical harm, which indicated they had no real intention of harming her [16]; (ii) even if it is accepted the loan shark and his subordinates had an adverse interest in her, the lapse of time indicated they are unlikely to still harbour the same mentalities (to cause her harm) as before [17]; (iii) reasonable state protection was available [18] – [22]; and (iv) internal relocation was not unreasonable [23] and [24].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 24 March 2021, the Board conducted an oral hearing for her appeal, during which she answered questions from the Board with the assistance of an interpreter.

9.In essence, the Board found the applicant failed to establish her case for non-refoulement protection under any of the applicable grounds [43].  The Board held that she was unable to produce reliable evidence to support the centerpiece of her claim, namely the alleged loan from the loan shark, ever existed, or that the loan shark allegedly threatened to harm or kill her [44] – [50].  Even on the assumption that the loan existed, the Board still found there was no substantial grounds to believe she would be harmed by the loan shark if refouled, and even if such risk of harm existed, it was due to a loan and not within the legitimate reasons under Prosecution Risk [54] – [57]. Having considered the totality of evidence, the Board also held that her claim under the grounds of BOR 2 and 3 risks to be unsubstantiated [58] – [64]. Similarly, the Board considered there were no substantial grounds to believe she would be liable to torture; such as she was never harmed by the state, which meant her claim under Torture Risk also failed [65] – [67].  Lastly, the Board held internal relocation would not be unreasonable or unduly harsh for her as she has several years of working experience and can relocate elsewhere in Indonesia [68] – [76].

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 14 July 2021 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has raised the grounds below covering the Director and the Board in support of her application.  I shall limit the grounds to the Board only.

(1)   The Board’s Decision is unfair and unreasonable as it had not taken into account BOR 2 right.

(2)   The Board was unfair to place too much weight on the country of origin information (“COI”) without considering her personal background and experience.

(3)   The Board was unfair when assessing her evidence and explanation and it requires her to answer questions that she was not in a position to respond.  Also, it had not taken into account of corruption and incompetency of the state administration.

(4)   The Board’s Decision is irrational.

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, the Board found that the applicant has failed to establish that she has any real risk of harm by the creditor if she returns to Indonesia.

17.Those grounds in support of her application under paragraph 12 are bare allegations or her opinions without any evidence in support.  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 12^th day of March 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

[1] Re: Moshsin Ali [2018] HKCA 549, Hon Lam VP and McWalter JA, 2 August 2018

“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing.  … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”