RIZA UMAMI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2288/2019

[2024] HKCFI 3376

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2288 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  In this case, there are two decisions dated 2 September 2015 and 20 April 2017 (respectively, “the Director’s 1^st and 2^nd Decisions”) of the Director of Immigration (“Director”) who had refused the applicant’s claim for non-refoulement protection. The applicant had lodged an appeal against both of the Director’s 1^st and 2^nd Decisions to the Torture Claims Appeal Board (“the Board”). There are therefore two decisions of the Board respectively dated 2 February 2017 and 24 July 2019 (respectively, “the Board’s 1^st and 2^nd Decisions”).

2.  By prescribed Form 86 filed on 9 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Board’s 2^nd Decision.

3.  As no request for a hearing was made, this court will determine the Leave Application without a hearing: O.53, r.3 (3) of the Rules of the High Court.

4.  In the Form 86, the applicant named the “Immigration Department” as the proposed respondent and the proposed interested party. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

Background

5.  The background as taken from the Director’s 2^nd Decision and the Board’s 1^st and 2^nd Decisions can be briefly stated as follows.

6.  The applicant came from Indonesia. She arrived in Hong Kong on 28 June 2011 with a permission to remain in Hong Kong as a foreign domestic helper. On 5 July 2011, her employment contract was prematurely terminated. After having been granted an extension of stay until 19 August 2011, she did not depart but overstayed. On 8 September 2011, she was arrested for overstaying. After her conviction and sentence for the offence of the breach of the condition of stay, the applicant faced removal from Hong Kong when the Director issued a removal order against her on 23 September 2011. On 30 July 2013, the applicant lodged a non-refoulement claim under all applicable grounds of risk of torture[1], BOR 3 risk[2] and persecution risk[3] under the USM.[4] As the applicant failed to complete a Non-refoulement Claim Form (“NCF”), her claim was treated as having been withdrawn on 22 November 2014. It was only after the applicant had completed the NCF through the Duty Lawyer Service was she allowed to re-open her claim. Her claim was based on her fear of being harmed or killed by a creditor for an outstanding loan of 500 million rupiahs if she were refouled.

7.  After the Director had conducted the screening interview on 26 August 2015, the Director decided against the applicant’s claim on the above-mentioned grounds in the Director’s 1^st Decision. The Director found that there was not a real chance that the applicant would be subjected to serious harm at the hands of the creditor. He further concluded that both state protection and the option of internal relocation were available to the applicant. The applicant lodged an appeal to the Board against the Director’s 1^st Decision.

8.  On 6 April 2016, the applicant attended an appeal hearing before the Board. The applicant answered questions the adjudicator for the Board raised. After having taken into account all the information placed before the Board and the evidence the applicant provided at the hearing, the Board found that the applicant’s case was unreliable, and rejected her claim. On the information available, the Board also agreed with the Director’s 1^st Decision that state protection was available and that there were reasonable relocation alternatives, which would further lower and negate the perceived risk of the feared ill-treatment or harm upon her return to Indonesia.

9.  In the Board’s 2^nd Decision exhibited to the applicant’s affirmation in support of the Leave Application, the Director’s 2^nd Decision was recorded. According to the recorded information, the Director wrote to the applicant on 23 March 2017. The applicant was asked to submit additional facts relevant to her non-refoulement claim on all applicable grounds, including BOR 2 risk[5] . However, the applicant did not provide any additional materials to the Director despite the notice having been given to her. In the absence of any information from the applicant, the Director found that the applicant failed to establish BOR 2 risk and dismissed her claim by the Director’s 2^nd Decision.

10.  Upon the applicant’s appeal against the Director’s 2^nd Decision, the Board conducted two hearings respectively on 12 March and 14 May 2019. After she had failed to attend the first hearing, a second hearing was held. In the second hearing, the applicant testified before the same adjudicator for the Board. After having assessed the applicant’s evidence, the adjudicator did not believe her and found that the applicant did not tell the truth at the hearing. Based on the information and the evidence the applicant had given to the Board, the Board dismissed her claim on the BOR 2 risk ground by the Board’s 2^nd Decision.

Legal principles applicable to judicial review

11.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

12.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited the Board’s 2^nd Decision, and only deposed that they (meaning the Board) had “disregarded her dangerous situation”. There were no evidence or identification of errors in support of the intended challenge.

13.  It is noted that the applicant only sought leave to appeal against the Board’s 2^nd Decision, and no appeal was made against the Board’s 1^st Decision. To have a complete picture of the applicant’s claim and her intended appeal, it would be necessary to also briefly discuss the Board’s 1^st Decision. It is observed that the Board’s 1^st and 2^nd Decisions were arrived at with the benefit of the hearings in which the applicant was able to clarify matters raised by the Board. After having examined the veracity of applicant’s evidence against the available information, the Board doubted the credibility of her evidence and found that there was no basis in support of her asserted fear of harm from her creditor. These are findings of fact, which the court in a judicial review will not interfere with.

14.  Having rigorously examined the Director’s 1^st and 2^nd Decisions[6]; and the Board’s 1^st and 2^nd Decisions with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Director’s 1^st and 2^nd Decisions and the Board’s 1^st and 2^nd Decisions. The Board had properly examined all relevant information and matters raised before the Director including the issue of internal relocation. I am satisfied that both the Board and the Director had conducted the proceedings with the high standard of fairness.

15.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

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