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

HCAL 1305/2019

[2024] HKCFI 978

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1305 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 17 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High 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 last entered Hong Kong as a foreign domestic helper on 9 April 2010 and was permitted to stay until 8 July 2011 or two weeks after the termination of her contract, whichever was earlier. On 6 October 2010, her employment contract was prematurely terminated. She did not depart and had overstayed since 21 October 2010. On 19 October 2011, she was arrested by the police. On 1 February 2012, her refugee claim with the UNHCR was closed and her torture claim was also rejected on 22 January 2013. On 13 January 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the moneylender because of her husband’s outstanding debt.

5.In brevity, the applicant claimed that her husband took out a loan with the moneylender in 2010. However, he never repaid the loan and fled. Meanwhile, she heard from her neighbour that the moneylender had been visiting her house and inquiring of her whereabouts. From 2011 to 2012, the moneylender called the applicant around twice a week and made death threats. Feared that the death threats would materialize or that the moneylender would rape her if returned, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 30 July 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 past experience indicated that the risk of harm upon her refoulement was low [17]; (ii) state protection would be available to her [18]; and (iii) internal relocation was a viable alternative [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 12 February 2019, the Board conducted an oral hearing for her appeal with an interpreter [9].

9.The Board recapped the applicant’s claim [29]-[38]. Having considered the evidence, the Board made the following findings. The Board found that the applicant’s evidence was vague, limited and inconsistent [42]. It cast doubt as to whether the applicant was actually married [42]. It also observed that, even if the applicant was married, she had limited information about the debt [43]. It noted that the applicant’s evidence about the consequence of inability to settle the loan inconsistent [44] and that her evidence about whether the moneylender actually looked for her was inconsistent [45]. In addition, the Board noticed that the applicant was also inconsistent as to how she found out that her husband fled [46]. Considering all these evidence, the Board found that the applicant’s claim lacked credibility. In any event, the Board found that internal relocation was a viable option [50]-[54].

10.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

11.On 15 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has filed an affirmation, in which she said she rejected the decision of the Immigration Department because they disregarded her dangerous situation.

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 Decision 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 had, for the reasons given above, rejected the applicant’s evidence in support of her claim. There is therefore no factual basis in support of her claim.

17.The applicant’s reasons in paragraph 12 are only her general comments. They are by no means valid grounds 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated 5^th day of April 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