Asiyah-bt-kamad-abas v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 655/2024

[2024] HKCFI 1875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 655 of 2024

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 29 February 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request a hearing.  I shall deal with her application on paper.

The applicant

3.The applicant, aged 39, is an Indonesian.  She last arrived in Hong Kong on 10 June 2019 to work as a foreign domestic helper (“FDH”).  Her employment contract was prematurely terminated on 26 August 2019 and she overstayed since 10 September 2019.  The applicant was arrested by the police on 4 September 2022 and she made a non-refoulement claim on 10 October 2023.  The claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (“the creditor”) because she failed to repay the loan to him.

4.According to the applicant, in early 2018, she took out a loan from the creditor in order to pay for the medical expense of her mother (“the first loan”).  To repay the loan, the applicant came to Hong Kong to work as a FDH on 20 May 2018.  She managed to pay monthly instalments between June 2018 and August 2018, but was unable to do so thereafter because she needed to repay the employment agency.

5.In August 2018, the applicant received two threatening calls from the creditor, after which she changed her phone number.  The applicant returned to Indonesia for a week in 2019.  She dared not return home and only stayed at her friend’s house because she was scared to be found by the creditor.  In August 2020, the applicant’s father took out a further loan from the creditor, with the applicant acting as a guarantor (“the second loan”).  The applicant’s father could not afford making any further payment after paying two monthly instalments.

6.One day in October 2020, the creditor went to the applicant’s home in Indonesia with three of his underlings demanding loan repayment.  He threatened to kill the applicant’s parents upon knowing that they were unable to repay.  Thereafter, the creditor would attend the applicant’s home from time to time seeking loan repayment.  One day in August 2023, the creditor went to the applicant’s home in Indonesia with two of his underlings while the applicant’s father and elder brother were at home.  An argument subsequently broke out during which the creditor pushed the applicant’s elder brother to the floor.  The creditor then left after threatening to kill the applicant if she failed to repay the loan.

7.The applicant maintained contact with her family while in Hong Kong.  Her mother warned her not to return to Indonesia because she would be killed by the creditor if she returned without money to repay the loan.

8.The applicant considered internal relocation not viable because she had no relative to rely on elsewhere within Indonesia and she also had no money for relocation.  Meanwhile, the applicant had never sought help from the police because they were corrupt and she had no money to bride them.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 November 2023 (“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 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”);

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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as she claimed [12]-[13]; (ii) state protection would be available to her upon her return [15]-[17]; (iii) internal relocation would be viable [14], [18]-[23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[35] or Torture risk [36]-[39].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board.  On 22 January 2024, the Board conducted an oral hearing.

13.During the hearing, the applicant claimed that the creditor had never contacted her via the phone.  She also claimed that the first time the creditor went to her home in Indonesia was in August 2023 [34].

14.The Board accepted that the applicant took out the first loan from the creditor and that she ceased repayment after paying three monthly instalments from June 2018 to August 2018 [35].  However, the Board did not accept that the creditor had made two threatening phone calls to the applicant chasing for loan repayment [37].  The Board also considered the second loan not credible because it was implausible that (i) the creditor would be willing to lend such a large sum of money when the first loan had not been repaid; (ii) the applicant could be a guarantor without signing any document and (iii) the applicant had no idea about the details of the second loan [38]-[39].  Regarding the claimed debt collection incidents, the Board found the applicant gave inconsistent evidence and rejected her claim that there was any such incident before August 2023 [40].

15.In any event, the applicant’s family members did not suffer any serious injuries during all the claimed debt collection incidents, indicating that the creditor had no intention to seriously harm or kill the applicant or her family [41]-[46], [51]-[53].  There was also no evidence of state involvement in the matter [62]-[63].

16.Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [26]-[31],

17.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

18.The applicant has filed Form 86 on 24 April 2024 to apply for leave for judicial review of the Board’s Decision.

19.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

20.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).

21.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

22.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.”

23.For the reasons the Board stated above, the Board does not accept that the applicant will be subjected to any of the applicable risks if she returns to Indonesia.  The applicant has raised no valid reason to challenge 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 29^th day of July 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