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

HCAL 2110/2019

[2024] HKCFI 3008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2110 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Director’s Decision and the Decision dated 12 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision fails in limine as she had appealed the Director’s Decision to the Board[1].

2.The applicant requested an oral hearing. However, she was absent at the hearing on 16 October 2024. I shall deal with her application on paper.

The applicant

3.The applicant, aged 42, is a national of Indonesia. She came to Hong Kong to work as a domestic worker. After she finished her contract, she applied to stay as a visitor. She was allowed to stay until 1 March 2014. She overstayed and surrendered to the Immigration Department on 16 January 2015. She gave birth to a son on 2 April 2015.

4.According to the applicant, she borrowed money from the money-lender for her expense of coming to Hong Kong as a domestic helper. Her parents were her guarantors. She was unable to repay as her salary was deducted by her employer and the agent. Her parents passed away. Her brother told her that the money-lender demand him to repay the loan for her. She had a Pakistani boyfriend in Hong Kong and she has given birth to a son in 2014. Her two brothers were angry and threatened that as the child was born out of wedlock, if they return to Indonesia, they will kill her and her son. She claimed that she will not be able to obtain state protection in Indonesia and internal relocation is not viable.

The Director’s Decision

5.The Director had rejected her torture claim. Therefore, 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”).

6.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 on her is indicative of small future risk of harm upon her return to Indonesia [13]; (ii) her brothers and the creditor did not have any real intention to kill her [13] ; (iii) state protection will be available to her upon her return [14]-[17]; and (iii) internal relocation is viable [18]-[20].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 26 September 2019, the Board conducted an oral hearing for her with an interpreter.

8.Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion below.

“33. … She herself admitted that the money lender did not threaten to harm her and she admitted that she does not want to repay the loan. Her evidence is unreliable and her claims implausible.”

9.The Board further found that state protection will be available to her [47] and internal relocation will be viable [51] if she returns to Indonesia.

10.For the above reasons, the Board dismissed her appeal.

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

11.The applicant has filed Form 86 dated 24 July 2020 for leave to apply for judicial review of the Board’s Decision.

12.In the affirmation in support of her application, the applicant said that the Board failed to consider all matters raised in her claim. In her statement attached to Form 86, she said that her right in respect of BOR 2 risk and BOR 3 risk should be protected in Hong Kong.

DISCUSSION

13.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).

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

15.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.”

16.Those grounds under paragraph 12 are the bare and general assertions and the general principles of the law without any evidence in support. They are not valid to challenge the Board’s Decision. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

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

DISPOSITION

18.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 unrepresented and did not appear.