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

HCAL 2203/2019

[2024] HKCFI 3021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2203 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for judicial review of the Notice of the Director of Immigration (“the Director”)  dated 22 January 2019, which was superseded by the Decision dated 30 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).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.  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 and the judgment, of which relief is sought, is the Board’s Decision.

The applicant

4.  The applicant, aged 46, is a national of Indonesia.  She was a domestic helper in Hong Kong.  Her employment contract terminated on 10 December 2008.  She overstayed and was arrested by the Immigration Department.  She lodged her non-refoulement claim by way of a written signification dated14 November 2018 on the basis that, if refouled, she will be harmed or killed by the creditor because she was unable to repay the loan drawn by her father.

5.  According to the applicant, in 1992, her father borrowed a loan from a creditor called Sugito for his trading business.  In 2004, his business failed and he was unable to repay his loan.  Sugito brought with him and demanded repayment in August/September 2008.  Sugito threatened to kill her father if he did not repay the loan.  He further proposed to marry the applicant in place of the loan.  She refused and came to Hong Kong to work as a domestic helper.  Her father reported the matter to police, which did not take any action.  In September 2011, whilst she was working in Hong Kong, Sugito called her to demand repayment of the loan or marry him.  Otherwise, he would kill her father.

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.  The Director found that: (i)  the low intensity and frequency of past ill-treatment inflicted on her is indicative of low future risk of harm upon her return to Indonesia [10]; (ii)  state protection will be available to her upon her return [13]-[14]; and (iii)  internal relocation is viable [15]-[16].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 28 May 2019, the Board conducted an oral hearing for her.  

9.  Having considered the applicant’s evidence, the Board dismissed her appeal as it found that her evidence was incredible because the significant problems with her evidence – inconsistencies, implausibility and the absence of credible detail [35].  The Board therefore concluded:

“37. Based on the credible evidence before me, and for the reasons set out above, I have not accepted that the Appellant is at any risk of harm from a loan shark to whom her father owed money, so I am satisfied that she would be able to return to her place of origin in Indonesia. However, even if I were wrong about this, I am satisfied that she could reasonably and safely relocate to another area of Indonesia.”

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

10.  The applicant has filed Form 86 dated 2 August 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant did not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

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

14.  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.”

15.  From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues he had raised with her.  In my view, the Board was entitled to come to its views above.

16.  The applicant has raised no valid ground 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 of the Board’s Decision.

DISPOSITION

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