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

HCAL 1301/2019

[2024] HKCFI 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1301 of 2019

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

Following;

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

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 20 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper and was permitted to stay until 19 October 2012.  Her employment contract was prematurely terminated on 5 October 2012.  However, she did not depart within the time limit and had overstayed since 20 October 2012. On 18 October 2017, she was arrested in a joint operation conducted by the Immigration Department and the Hong Kong Police.  On 29 January 2018 and 1 February 2018 respectively, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her uncle as she refused to marry her uncle’s creditor.

5.  In short, the applicant claimed that her uncle had been supporting her and her mother since her parents divorced.  In around 2011, she received a phone call from her mother that her uncle had taken out a loan from the creditor.  In September 2012, her mother informed her of the arrangement to marry her with the creditor as a settlement of the loan.  Otherwise, her uncle would be killed.  The applicant refused. The applicant’s mother was under pressure from her uncle and she had developed distress syndrome, as a result of which she passed away. Thereafter, her uncle continued to threaten her and also accused her of being the cause of her mother’s death.  As the applicant was unable to find a new employer to assist in the loan repayments, and feared that her uncle’s threats would materialize, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 7 of the Notice of Decision dated 10 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 absence of ill-treatment from her uncle indicated an unlikelihood of future risk of harm [13]; (ii) the threats from her uncle, if any, were localized [14]; (iii) state protection would be available to her [15]-[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 9 November 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries [22]. 

9.  The Board recapped the applicant’s claim [3]-[21].  It also summarized her oral testimonies [22]-[29].  Having considered the evidence and the country of origin information [30], the Board made the following findings.  At the outset, the Board found that the applicant’s evidence was generally consistent [37].  In assessing the individual grounds, the Board found that it was a private monetary dispute without state involvement [40]; that on the evidence it was unlikely that her uncle would inflict any harm on the applicant [44]-[48]; and that state protection and internal relocation were viable options [49]-[55].

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.  On 15 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has filed an affirmation in support of her application, in which she complained that the Board had 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 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.  The Board had, in the Board’s Decision, recorded the applicant’s admissions in relation to her uncle as follows:

“45. … However, she stated in the hearing that she believed that the threats administered by her uncle was out of character; that those strong words were probably out of the spurt of his anger without any real intention to harm her.

46. The Appellant described her uncle as a kind person and he had never assaulted or fought with any others.

47. Furthermore, the Appellant admitted at the end of the hearing that she still loves and respects her uncle. … her uncle will be unlikely to harm her.

48. In view of the above, there are no substantial grounds for believing that the Appellant would be in danger of being subjected to any severe pain of suffering upon her return to Indonesia.”

17.  The applicant has raised no valid ground to challenge the above findings of the Board. There is no valid ground from the applicant to challenge 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 for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

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