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

HCAL 1510/2019

[2024] HKCFI 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1510 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 27 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, aged 38, is an Indonesian. She had been working as a foreign domestic helper in Hong Kong intermittently since July 2010. She last entered Hong Kong on 14 June 2015. On 24 July 2015, her employment contract was prematurely terminated and she overstayed in Hong Kong since 8 August 2015. The applicant surrendered to the Immigration Department on 21 August 2015. She made a non-refoulement claim on 25 April 2016 and 1 February 2018. The claim was made on the basis that, if refouled, the applicant would be harmed or killed by her parents’ creditor (“the loan shark”) because she and her father were unable to repay the loan and she refused to marry the loan shark as an alternative.

5.According to the applicant, in or around September 2014, her father took out a loan from the loan shark to build a house. As the loan from the loan shark was insufficient, the applicant further borrowed money in Hong Kong from Prime Credit (“PC Loan”) in or around October 2014. She repaid the entire PC Loan in around October 2015, but was unable to repay the loan to the loan shark as a result. In or about early 2015, the loan shark demanded the applicant’s father to repay the loan, failing which the applicant would be killed. Alternatively, the applicant could marry him to set off the loan.

6.The applicant’s father told the applicant about the threats from the loan shark and that she had to marry him to set off the loan. The applicant did not agree with the loan shark’s proposal, which made the loan shark angry. Since then, the loan shark with one or two of his bodyguards came to threaten the applicant’s parents with knives and demand repayment from time to time.

7.As the applicant was unable to make repayment, the loan continued to be outstanding. The applicant maintained contact with her parents and was informed that the loan shark and his bodyguards sometimes came to her house and asked for her whereabouts from her parents.

8.The applicant did not report the matter to the Indonesian police because she was not in immediate danger given that she was in Hong Kong. In any event, she was of the view that the police would not help even if the matter was reported to them. She considered internal relocation within Indonesia not viable as well because she had no friends or relatives elsewhere. She also had no financial ability for relocation.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 November 2018 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past ill-treatment from the loan shark indicated that she did not face a real and imminent risk [11]-[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 requirements under BOR 2 and BOR 3 risk [21]-[26], Persecution risk [27]-[31] or Torture risk [32]-[34].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 19 March 2019, the Board conducted an oral hearing.

13.During the hearing, the applicant revealed that the frequency of threats by the loan shark against her family reduced since the end of 2015 and he even stopped approaching her family in 2016 [30]-[31]. The Board considered the action of the loan shark suggested that he no longer had interest in the applicant and lacked intention on harming her [32], [44]. The applicant also varied her evidence saying that her family put no pressure on her in marrying the loan shark [33].

14.When queried how the applicant could afford her tuition fees for an off-campus course from Upper Iowa University, she claimed that she was financially supported by a mysterious man. Yet, the Board found it difficult to understand why the applicant did not prioritise settling the loan from the loan shark when she was able to access significant ongoing funds in Hong Kong [38]-[39], [43]. In any event, it had doubts about the existence of the loan given that the applicant was unable to provide any of its details [41]-[42]. The Board also found the timing of the PC Loan suspicious, as it was obtained only a month after the loan from the loan shark [46]-[47].

15.Based on such findings, the Board did not accept the existence of the loan as well as the claimed threats by the loan shark on her and her family. They also considered that the applicant faced no real chance of harm if she returned to Indonesia [50]-[52].

16.The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk [53]-[60], BOR 2 and BOR 3 risk [61]-[68] or Persecution risk [69]-[72]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

17.The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.In her affirmation in support of her application, the applicant did not raise any specific ground although she has informed the Court that she wants to have further study in Hong Kong.

DISCUSSION

19.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).

20.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understands the Board’s Decision and she is unable to say whether the Board was wrong. However, she wants the Court to re-consider her case.

21.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.”

22.For the reasons given by the Board above, the Board rejected the applicant’s factual evidence in support of her claim. In the circumstances, the applicant has no factual basis for her claim.

23.The applicant has raised no valid reason to challenge the Board’s Decision. There is nothing amiss for the Board to have come to its conclusion for the evidence before it. There is simply no reason for this Court to interfere with the Board’s finding of the facts.

24.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

25.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 31^st day of May 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