DEWI ARLIFAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 935/2023

[2023] HKCFI 1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 935 of 2023

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;

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 25 May 2023 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”), her application is dealt with on paper.

The applicant

3.  The applicant is a national of Indonesia.  She had been in Hong Kong as a foreign domestic helper since 2017.  She last entered Hong Kong on 24 May 2021 and was permitted to remain as a foreign domestic helper until 5 November 2021, or two weeks after the termination of her employment contract.  On 29 September 2021, her employment contract was prematurely terminated.  On 3 November 2021, her application for another visa to work as a foreign domestic helper was refused and she was required to leave on or before 17 November 2021.  She did not depart and had overstayed since 18 November 2021.  On 14 June 2022, she was arrested by the Immigration Department for taking up unapproved employment.  On 20 June 2022 and 25 June 2022, she lodged a non-refoulement claim. 

4.  The applicant claimed that, if refouled, she would be harmed or killed by her husband Arifin and her moneylenders.  According to the applicant, she had been a victim of domestic violence from 2014 to 2015.  While she divorced her husband in 2015, he still physically abused her as he wanted the custody of their daughter.  In mid-2016, the applicant borrowed a loan for a tofu-selling business.  However, she did not start the business and spent the loan on herself and her daughter’s daily expenses.  Thereafter, as the applicant was jobless, she defaulted the loan payments.  The moneylender had since then been chasing her for repayments.  Yet, the moneylenders never threatened or assaulted the applicant or her family members.  

5.  In 2018, the applicant’s ex-husband started calling her again for their daughter’s custody.  Her last contact with her ex-husband was in 2021.  In addition, the applicant stated that her ex-husband did not hurt her family members and would only harm her.  Out of fear, the applicant decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Director’s Notice of Decision dated 2 September 2022 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) there was no real or foreseeable risk of harm from the ex-husband or moneylenders upon her refoulement [12]-[21]; (ii) state protection would be available to her [22]-[28]; and (iii) internal relocation was a viable option [29]-[30].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 25 April 2023, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [27].

9.  The Board recapped the applicant’s claim, her personal background, and her oral evidence at the hearing [6]-[12].  Having considered the evidence, the Board found that her evidence was not credible.  In particular, the Board noted that the applicant’s accounts on the loan were implausible; that she was unable to provide details of the alleged domestic violence; that she delayed in lodging her non-refoulement claim; that it was unreasonable that the bank, where the applicant claimed to take out the loan from, would use debt collectors to pursue debts when it held land deeds as collateral [34]; and that internal relocation to Jakarta or Bali was a viable option for the applicant [35].

10.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 14 June 2023 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised no specific ground in support of her application.

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 its 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. Before me, the applicant confirmed that she understood the Board’s Decision and she was free to state her case before the Board. She further said that she wanted more time to produce proof of her case. But she did not say what documents she intended to produce.

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.  For the reasons given in paragraph 9, the Board rejected her evidence.

17.  The applicant has raised no valid ground to challenge the Board’s Decision. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

19.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

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