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

HCAL 1436/2019

[2024] HKCFI 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1436 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 present 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 (“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”), she appeared before the Court on 30 August 2023.

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 8 May 2015 and was permitted to be employed as a domestic helper.  However, her contract was prematurely terminated and she did not depart within her limit of stay.  On 28 August 2015, she surrendered to the Immigration Department.  Over a year later on 7 March 2017, she made a non-refoulement claim on the basis that she would be harmed or killed by her husband’s creditor (Hasan) and her own husband (Sutrisno) due to a loan dispute and her refusal to marry Hasan.

5.According to the applicant, she married Sutrisno in 2004.  Sadly, he had been abusive throughout their marriage, the level of which ranged from slapping and kicking, to on severe occasion, he used a bamboo stick to hit her head and kicked her legs to the point she was no longer ambulatory.  However, she did not report these incidents to the police as she did not think they would help her.  In order to avoid Sutrisno, she sought employment overseas.

6.In 2010, Sutrisno attempted a retail business and obtained a loan of 70 million Indonesian Rupiah from Hasan.  The applicant does not know Hasan personally but was informed he was a wealthy loan shark.  She received the loan agreement in the mail from Hasan as she was working in Hong Kong at the material time.  She was also informed that the loan would only be approved if she acted as the guarantor.  Despite being unaware of other crucial information such as the loan’s interest and deadline for repayment, she signed the loan agreement and mailed it back to Sutrisno.  However, Sutrisno’s business was failing after seven months of its commencement and he unable to make repayment.  Thereafter, Hasan and his men went to her family’s home (where Sutrisno was residing) and ransacked their home.  They threatened to kill both the applicant and Sutrisno if the loan remained unpaid.  In late 2011 or 2012, a meeting was held amongst Hasan, Sutrisno and the applicant’s family to negotiate the settlement of the loan.  It was suggested by Sutrisno for her to marry Hasan, as he was willing to forego the loan if she acceded to the marriage arrangement.  However, the applicant, including her family, refused Hasan’s demand.  Soon after, Hasan would call and threatened to kill her if she did not marry him.  She has since lost contact with Hasan in 2014 after changing her phone number.  As for Sutrisno, he continued to threaten to kill her if she did not help him to repay the loan or marry Hasan.  In the end, she ultimately did not want to be involved with the loan matter and ceased communications with him since 2014.  Details of the applicant’s claim are set out at paragraph 6 of the Notice of Decision dated 22 August 2017 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-treatment from Hasan and Sutrisno indicated that any future risk of harm upon refoulement was unlikely to materialize; and the perceived harm or ill-treatment from them was not as imminent and substantial as the applicant asserted [11] and [12]; (ii) the loan dispute was localized and in any event, she had lost contact with both Hasan and Sutrisno since 2014, with no indication she was being chased by them [13]; (iii) state protection was available based on objective COI [16]; and (iv) internal relocation was available and reasonable [20].  

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board.  On 1 November 2018, the Board conducted an oral hearing for her appeal, during which she answered questions from the Board with the assistance of an interpreter.

10.The Board recapped the applicant’s claim [13].  In essence, the Board was willing to accept that there was some physical abuse from Sutrisno, however, it had serious doubt regarding the circumstances of the loan [57]. The Board also had difficulties in accepting the factual matrices regarding the threat from Hasan, such as he was allegedly a Christian yet forced her to marry him, which the Board found to be incredible [63] – [65].  Having considered the totality of the evidence, the Board’s assessment was that the applicant had not disclosed the whole truth of what had transpired regarding the loan, Hasan, the threats and the alleged marriage arrangement [68].  Despite this, the Board went further to consider on a hypothetical basis that the applicant’s account of events was fully accepted, her claim would still be rejected as there were internal relocation options which were available and reasonable [75] – [79]. The Board lastly considered her claim under the applicable grounds of non-refoulement protection and found each of them to be unsubstantiated [81] – [96].

11.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

12.The applicant has filed Form 86 dated 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has submitted the grounds in support of her application below.

(1)   She requires a hearing for her application.

(2)   She was discriminated because the authorities were only attempting to dispose of her application quickly.

(3)   The Board was in breach of procedural fairness as it fettered its discretion unlawfully not to allow her application; the adjudicator was acting in an unfair manner and the Board’s Decision if unreasonable or irrational; the Board had failed to meet greater care and duty to the applicant as a self-represented claimant.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant confirmed that she understands the Board’s Decision; that she was free to express herself at the hearing; that she does not think the Board is wrong in its decisions.

16.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.”

17.For the reasons given in paragraph 10 above, the Board found that the applicant was not a truthful witness and she failed to establish that she will be subjected to the claimed risk upon her return to Indonesia.

18.The grounds under paragraph 13 are her personal opinions without any evidence in support of them.  The applicant has raised no valid ground 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 12^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