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HCAL 1413/2019
[2024] HKCFI 859
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1413 of 2019
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Darwati |
Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
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 12 April 2019 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.
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 is a national of Indonesia. She last entered Hong Kong on 15 September 2014 and was permitted to remain as a foreign domestic helper until 15 September 2016, or two weeks after the termination of her employment contract, whichever was earlier. On 3 January 2015, her employment contract was prematurely terminated. She was required to leave on or before 17 January 2015. She did not do so and had overstayed since 18 January 2015. On 6 January 2016, she surrendered to the Immigration Department. On 13 June 2016, she lodged a non-refoulement claim on the basis of a fear of risk of harm due to an outstanding debt.
5. In brevity, the applicant borrowed a loan from the BPR Bank in 2013. She further took out a loan with Yohana. Both sums were for business purpose. However, her business failed and she defaulted the loans. In early 2013, Yohana first chased for repayments. Apart from demanding for the settlement, Yohana did not do anything to the applicant. In June 2014, while she was working in Hong Kong, she heard from her mother that Yohana verbally threatened to put her in jail. Out of fear, she sought protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 30 July 2018 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) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[13]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable option [15].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing for her appeal, during which she clarified and supplemented her claim [27]-[30].
9. Having considered the claim, the Board made the following findings. It found that the applicant’s claim was a case of loan dispute. There was no evidence that Yohana was asking for an excessive rate or imposing a very harsh condition for the repayments. She never inflicted harm on the applicant but merely threatened to put the applicant in jail. Meanwhile, the country of origin information indicated that state protection was available to the applicant [32]-[37]. As a result, the applicant’s claim on the ground of Torture risk failed. For the same reasons, her claim on the remaining grounds also failed. In any event, internal relocation was a viable option for her [46]-[50].
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 24 May 2019 for leave to apply for judicial review of the Board’s Decision.
12. In the applicant’s affirmation in support of her application, the applicant said that the Board disregarded her dangerous situation.
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.
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. The applicant fails to raise any valid reason to challenge the Board’s Decision.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated 20th day of March 2024.
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 20/3/2024
Darwati
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20/3/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12974/18/8/244/I1427
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3016/18 (Formerly RBCZ 12247/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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