Jariatin Naim v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1789/2019 on BabelCite. This High Court CFI judgment was delivered on 23 September 2024.
1. The applies for leave to apply for judicial review of the Decision dated 21 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
Cites 7 cases
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HCAL 1789/2019 [2024] HKCFI 2357 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1789 OF 2019 _____________ BETWEEN
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_____________ JUDGMENT _____________ THE APPLICATION 1.The applies for leave to apply for judicial review of the Decision dated 21 June 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 at the hearing on 17 July 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 32, is an Indonesian. She last arrived in Hong Kong on 17 October 2016 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 5 January 2017 and she overstayed since 20 January 2017. The applicant surrendered to the Immigration Department on 7 February 2017 and made a non-refoulement claim on 30 June 2017. The claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (“the creditor”) because she could not repay the loan. 5.According to the applicant, in early 2012, she and her husband took out a loan from the creditor to startup their fertilisers business. Shortly thereafter, her husband had a traffic accident. The applicant utilised all the borrowed money from the creditor to pay for the medical expenses of her husband. Yet, her husband did not recover and eventually died in April 2012. As a result, the applicant was unable to repay the full amount of the loan to the creditor. 6.The applicant first came to Hong Kong to work as a FDH on 11 October 2013. In around March 2014, the creditor obtained the applicant’s phone number from her mother and called her demanding loan repayment within a month, failing which she would be killed upon her return to Indonesia (“the March 2014 incident”). In May 2014, the applicant learnt from her mother that the creditor had taken all the valuable items from her home for resell. The creditor even attempted to assault the applicant’s father after he yelled at him, but was intervened by a neighbour (“the May 2014 incident”). 7.Thereafter, the applicant’s parents were scared and they relocated to avoid the creditor. Since then, the creditor had never approached the applicant’s parents, but only called her mother once or twice a week enquiring the applicant’s whereabouts and phone number. When the applicant returned to Indonesia in 2015 and 2016 during the gaps of her employment, she also did not encounter the creditor. 8.The applicant ceased contacting her family in around early 2018, after she learnt that her mother gave her new phone number to the creditor. The applicant had never sought assistance from the police because she thought it was a private matter and was afraid of retaliation from the creditor. She also considered internal relocation not viable because she had no relative to support her elsewhere in Indonesia. 9.Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 27 July 2018 (“the Director’s Decision”). The Director’s Decision 10.The Director considered the applicant’s claim in relation to the following risks:
11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the past behaviour of 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 [16]; (ii) state protection would be available to her [18]-[24]; (iii) internal relocation would be viable [17], [25]-[26] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[41]. The Board’s Decision 12.The applicant appealed the Director’s Decision to the Board. On 21 March 2019, the Board conducted an oral hearing. 13.The Board considered that the core of the applicant’s evidence lacked credibility. She missed out crucial details regarding the March 2014 and May 2014 incidents during the hearing while her evidence in relation to the loan was vague. The Board also found it implausible that the creditor would only demand for repayment by March 2014 if the loan matured in 2012 and had doubts that the applicant would not have contacted her parents to find out the situation of her child [56]-[63]. 14.In any event, the matter was purely personal in nature with no evidence of state involvement and the applicant had never been physically harmed by the creditor. 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 [25]-[39], [66]-[73]. Furthermore, internal relocation would be available according to the country of origin information [53]-[54], [75]. 15.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 16.The applicant has filed Form 86 dated 28 June 2019 to apply for leave to apply for judicial review of the Board’s Decision. 17.In the affirmation in support of her application, the applicant has raised the grounds as below.
DISCUSSION 18.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). 19.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. 20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
21.For the reasons given in paragraphs 13 & 14, the Board rejected her evidence in support of her claim. 22.The reasons raised in paragraph 17 are mostly general assertions or her own personal comments without evidence in support. They are not valid reasons to challenge the Board’s Decision[1]. She has raised no issue on her psychological strain before the Board. She has no ground to complain. 23.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision. DISPOSITION 24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
The applicant was not represented and did not appear. [1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
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Cases cited in this judgment
Further hearings and rulings under HCAL 1789/2019