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

HCAL 2244/2019

[2024] HKCFI 3409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2244 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 Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 18 July 2019 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her

2.  The applicant asked for a hearing. However, she was absent at the hearing on 18 November 2024. I shall deal with her application 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, aged 40, is an Indonesian. She last arrived in Hong Kong on 13 September 2010 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 28 March 2011 and she overstayed since 12 April 2011. The applicant was arrested by the police for overstaying on 15 October 2011 and was sentenced to imprisonment of 1 month suspended for 2 years on 21 October 2011. The applicant made a torture claim on 27 October 2011 and 17 November 2011, but she withdrew the claim on 15 August 2013. The applicant made a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 10 July 2013. The claim was made on the basis that, if refouled, she would be harmed or even killed by her mother’s creditor (“the creditor”) because she failed to repay her mother’s loan.

5.  According to the applicant, her mother took out a loan from the creditor under the applicant’s name in 2010. In around October/November 2010, the applicant was informed by her sister that the creditor had been to her home demanding repayment and looking for her. Shortly thereafter, the applicant received threatening calls from the creditor. Although she had not been contacted by the creditor after she changed her phone number in December 2010, she still worried about her safety upon returning to Indonesia. In 2015, the applicant acquainted her Nepalese boyfriend who is also a Hong Kong permanent resident and she gave birth to her son on 16 November 2016.

6.  The applicant was of the view that she could not seek protection from the police because she had no money to bribe them and that they would not handle private dispute anyway. She also considered internal relocation not viable because she had no family ties elsewhere in Indonesia and she feared to be located by the creditor through his network.

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 December 2018 (“the Director’s Decision”).

The Director’s Decision

8.  The Director considered the applicant’s claim in relation to the following risks:

(a)  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”);

(b)  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

(c)  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the absence or low intensity and frequency of past ill-treatment from the creditor indicated that the risk of harm was not as imminent as asserted [12]-[13]; (ii) there was no evidence showing that the creditor was as influential as she claimed [14]; (iii) state protection would be available [15]-[18] and (iv) internal relocation would be viable [19]-[23].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 16 May 2019, the Board conducted an oral hearing.

11.  The Board noted that the applicant had never suffered any physical harm previously and the only threat she received from the creditor was the phone calls in 2010. In any event, the Board considered that the applicant should not face a real risk of harm as the country of origin information (“COI”) indicated that loan sharks in Indonesia would more likely seize collateral rather than resort to violence. Her status as an unmarried mother would not lead to a real risk of discrimination either. Furthermore, state protection and internal relocation would also be available according to COI [47]-[79].

12.  Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

13.  The applicant has filed Form 86 on 6 August 2020 for leave to apply for judicial review of the Board’s Decision.

14.  In her affirmation in support of her application, the applicant submitted that she was not satisfied with the Board’s Decision because it is very unreasonable and the decisions were depended merely on web reports, not on the source relevant to her torture claims.

DISCUSSION

15.  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).

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

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:g

“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.”

18.  The applicant’s grounds under paragraph 14 are her bare assertions without any evidence in support. There is no reason for the Court to interfere with the Board’s Decision.

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

DISPOSITION

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