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HCAL 2587/2018
[2022] HKCFI 3565
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2587 of 2018
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BETWEEN
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Sri Pujiastuti |
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 25 October 2018 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”), the Court will deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.
The applicant
4. The applicant is a national of Indonesia. She entered Hong Kong on 10 February 2012 as a foreign domestic helper. However, her employment contract was terminated prematurely and she was required to leave on or before 28 January 2013. She did not depart and had overstayed. On 16 May 2013, she was arrested by the police for overstaying. On 27 May 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her parents’ creditor.
5. In brevity, the applicant’s parents borrowed a loan from a bank, without the applicant’s knowledge, in around August 2008. One day in 2008, her mother telephoned her and asked her to help with repaying the loan since her father passed away and her brother was still a teenager. In the phone conversation, her mother told her that the creditor threatened to confiscate their house and to kill her if she returned without settling the loan. The applicant changed her phone number and had since then ceased contact with her mother. As she still feared that the creditor would materialize the death threat, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 27 February 2017 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 as her claimed fear of harm was groundless. In elaboration, the Director found that (i) the absence of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) the dispute was private without state involvement [16]; (iii) state protection would be available to her [17]-[19]; and (iv) internal relocation was a viable option [20]-[21].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 25 May 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [5].
9. The Board first considered that the loan might be from a private creditor instead of a bank as alleged by the applicant [30]. It then found that the applicant’s claimed fear of harm from the said creditor was speculative and that she had no contact with her family for almost ten years [31]. On the applicant’s own evidence, their house was confiscated by the bank (or the creditor) which was a plausible indication that the loan was satisfied many years ago [31]. Further, the country of origin information showed that the applicant could take action against the creditor and that she could relocate to other areas in Indonesia [34]-[40].
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 19 November 2018 for leave to apply for judicial review of the Board’s Decision.
12. In her affirmation in support of her application, the applicant said she cannot return to her country for the moment.
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 Decision 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. There is no valid ground to challenge the Board’s Decision.
17. The Court does not find any fault with the Board in reaching the Board’s Decision.
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.
Dated the 23rd day of November 2022
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(Chung Lai Fan, Christine)
for Registrar, High Court
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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 Applicant:
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 23 November 2022
Sri Pujiastuti
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 23 November 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 6518/17/3/173/I659
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 47/17 (Formerly RBCZ 3000872/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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