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

HCAL 2176/2018

[2022] HKCFI 545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2176 of 2018

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 Applicant being absent 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 2 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 last entered Hong Kong on 28 October 2014 as a foreign domestic helper.  Her employment contract was prematurely terminated on 5 March 2017.  She did not depart within the time limit and had since overstayed.  On 19 May 2017, she was arrested by the police.  On 22 May 2017 and 30 June 2017 respectively, she raised a non-refoulement claim.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her husband and his creditor.  

5.     According to the applicant, she married her husband in 2014.  Around two weeks into the marriage, her husband started assaulting her for her refusal to repay his loan, causing bruises all over her body.  Later in 2015, while she was working in Hong Kong, she met a boyfriend.  Angered by her husband’s affair back home, she posted a picture of her boyfriend online.  One day in 2017, her husband contacted her and threatened to kill her if she refused to repay her another loan.  She was told that her house back home was taken over by the loan shark and that the husband would also kill her for her relationship with the man in Hong Kong.  Out of fear, she stayed in Hong Kong for protection. Details of her story are set out in paragraph 7 of the Director’s Decision and paragraphs 3 to 13 of the Board’s Decision described below.

The Director’s Decision

6.     The Director considered her application in relation to the following risks:

a.     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 a Notice of Decision dated 29 March 2018 (“the Director’s Decision”) the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of her being harmed or killed by her husband was assessed to be low [11]-[13]; that state protection would be available to her [14]-[16] and that internal relocation was an option open to her [17]-[18].

The Board’s Decision

8.     The applicant appealed the Director’s Decision to the Board.  In the oral hearing held on 14 June 2018, the applicant answered the inquires raised by the Board [15]. 

9.     The Board identified several inconsistencies between the applicant’s oral testimony and those she gave before the Director.  For example, she had different versions as to the outstanding sum of the husband’s loan; she also provided inconsistent account as to how the husband obtained the deed to her house; she stated at the hearing before the Board that 14 men visited her house for collection of the debt while this information was left out during the interview with the Director; and she failed to provide cogent explanation as to why the loan shark would go after her when her husband was the one taking out the loan [30]-[42].  Viewed the evidence in totality, the Board refused to accept the applicant as a credible witness.  Further, in assessing the individual grounds, the Board found that it was a private dispute with no state involvement [45] and that, based on the country of origin information, state protection and internal relocation were available to the applicant [49]-[54]. For these reasons, the Board rejected the applicant’s claim on all applicable grounds and dismissed her appeal.  

Application for leave to apply for judicial review

10.     The applicant filed Form 86 on 10 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.     In her affirmation in support of her application, the applicant stated “…The Decision is unfair and unreasonable. My life is in danger.”

DISCUSSION

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

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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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.     There is no valid challenge from the applicant against the Board’s Decision.

16.     The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.     The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.     I refuse to grant leave to 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