Eka Rusmiati Binti Rustandi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1750/2019

[2024] HKCFI 2168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1750 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 31 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. However, she was absent on the date of hearing on 24 June 2024 without prior notice to the Court. 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 37, is an Indonesian. She arrived in Hong Kong on 13 August 2014 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 6 November 2014 and she overstayed since 21 November 2014. The applicant was arrested by the police on 20 July 2015 and she made a non-refoulement claim on 12 August 2015. The claim was made on the basis that, if refouled, she would be harmed or killed by her parents’ creditor (“the creditor”) because she failed to repay the loan.

5.According to the applicant, her parents were heavily indebted to the creditor before they passed away. In 2015, before the applicant’s mother passed away, she told the applicant over the phone that the creditor had threatened to kill her if she failed to repay the loan.

6.The applicant considered internal relocation not viable because she believed that the creditor would continue looking for her. Meanwhile, she had no idea as to whether the police would be able to protect her.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 21 February 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the applicant had not been subjected to any past ill-treatment from the creditor that reached the requisite level of severity [11]; (ii) state protection would be available to her [13]-[15]; (iii) internal relocation would be viable [12], [16]-[21] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[33] or Torture risk [34]-[36].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 20 May 2019, the Board conducted an oral hearing.

11.The Board found there were material inconsistencies between her evidence to the Director and her oral evidence to the Board. There were also contradictions within her evidence given during the hearing. The Board therefore rejected the applicant’s claim that her parents were heavily indebted to the creditor and that she would be killed by the loan shark if she failed to repay the loan [95]-[97]. Furthermore, state protection and internal relocation would be available according to the country of origin information [116]-[118], [154]-[155].

12.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [106]-[167]. 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

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

14.In the affirmation in support of her application, the applicant submitted that the core issue of the claim is the credibility of her evidence, which the Board had rejected entirely, which implies that the Board should not reject her evidence.

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 the Board has given above, the Board rejected the applicant’s evidence in support of her claim. It seems that the Board was entitled to come to its conclusion as it did.

19.The applicant has not been able to raise any valid ground to challenge the Board’s Decision.

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

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 3^rd day of September 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