Nur'Anah v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1412/2019

[2024] HKCFI 906

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1412 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 May 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.

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 4 March 2010 and was permitted to stay until 4 March 2012, or two weeks after the termination of her employment contract, whichever was earlier.  On 14 September 2010, her employment contract was prematurely terminated.  She did not depart and had overstayed since 29 September 2010.  On 18 December 2011, she was arrested by the police for overstaying.  On 15 September 2014 and 17 November 2017, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband, a loan shark named Sujut, and her stepfather.

5.According to the applicant, she had been in an abusive marriage with her ex-husband.  In one incident, he threatened to kill her with a knife.  The applicant’s stepfather attempted to reconcile but it was of no avail. Meanwhile, the applicant’s attempted escape to her grandmother’s home also failed.  She was detained by her ex-husband.  In April 2003, she gave birth to their son.  The couple then decided to build a house.  Her ex-husband therefore took out a loan with Sujut.  However, their farming did not harvest sufficiently to repay the loan.  Thus, the applicant went to her overseas employments. During this period, her husband continued to threaten her.  She had to stay in her stepfather’s house in January 2010 after her contract ended in Hong Kong. 

6.During her stay with her stepfather, the applicant claimed that her stepfather raped her twice.  Also, the applicant stated that the loan shark threatened to kidnap her if she failed to settle the loan.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 8 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from her ex-husband and loan shark indicated an unlikelihood of future risk of harm [15]-[16]; (ii) the perceived risk of harm from her stepfather was also not real or imminent [17]-[23] (iii) state protection would be available to her [24]-[27]; and (iv) internal relocation was a viable option [28]-[34].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 8 January 2019, the Board conducted an oral hearing for her appeal, during which the applicant gave oral evidence [7].

10.The Board recapped the applicant’s claim [33]-[55] and summarized her oral testimonies [56]-[90].  Having considered her claim, the Board made the following findings.  It found that her delay in seeking protection undermined her credibility [94]; that her explanation of missing out the rape claim was unconvincing [95]-[96]; that her conduct of returning to Indonesia in early 2010 was inconsistent with her claimed fear of harm [97]; that her evidence on the alleged threats from the loan shark was inconsistent [98]; that she did not made an allegation that the loan shark actually harmed her nor did she have the loan documents [99]; that in fact she had no knowledge of whether the loan was still outstanding [100]; and that she did not seek assistance from the police [101].

11.The Board had also found that state protection would be available to the applicant [83] and internal relocation would be available to her such as Jakarta or Bali [84].

12.In light of the aforesaid findings, the Board rejected the applicant’s claim [105]-[106] and dismissed her appeal.

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

13.The applicant has filed Form 86 dated 24 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant said she rejected the Board’s Decision as it disregarded her dangerous situation.

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 the Board’s 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.For the reasons given in paragraph 10, the Board rejected her evidence. The Board had also considered state protection and internal relocation alternatives being available to the applicant.

19.The applicant has raised no valid ground to challenge the Board’s Decision. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

21.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 11^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