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

HCAL 1423/2019

[2024] HKCFI 1898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1423 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 17 May 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.

The applicant

4.  The applicant, aged 35, is an Indonesian. She last entered Hong Kong to work as a foreign domestic helper on 21 April 2015.  On 15 August 2015, her employment contract was prematurely terminated and she overstayed in Hong Kong since 30 August 2015.  She was arrested by the police on 2 September 2015.  On 9 October 2015, the applicant was convicted of using a false travel document and making a false representation to an Immigration Assistant/Officer. She was sentenced to imprisonment for 3 months. The applicant raised a non-refoulement claim on 10 November 2015. The claim was made on the basis that, if refouled, she would be harmed or killed by her parents’ creditor (“the creditor”) because she was unable to repay the loan for her parents and refused to marry the creditor.

5.  According to the applicant, in or around 2010, her parents borrowed money from the creditor for use as medical expenses and they wanted the applicant to marry the creditor to set off the loan. She refused and the creditor had verbally threatened to kill her due to such refusal. To avoid the creditor, the applicant left Indonesia for Taiwan in 2011 after training for 10 months at an employment agency in Jakarta. The applicant returned to Indonesia in 2014 and received training for a month. On 14 August 2014, the applicant left Indonesia for Hong Kong. She maintained contact with her parents and was told that the creditor was still actively searching for her.

6.  The applicant had never reported the case to the police because she thought they were corrupt and she could not afford bribing them. She also considered relocation within Indonesia not viable because the creditor had many friends so that he could still locate her.

7.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 10 May 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 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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the absence or low intensity of past ill-treatment from the creditor indicated that he had no real intention to harm the applicant, so that she did not face a real and imminent risk. Her late application for protection was also inconsistent with the behaviour of a person genuinely in fear [15]-[18].

10.  In any event, the Director was of the view that (i) state protection will be available to her upon her return [19]-[22]; (ii) internal relocation is viable [23]-[24] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[36] or Torture risk [37]-[40].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. The Board considered that the appeal can be justly determined without an oral hearing and the case was proceeded on such basis [9].

12.  The Board was of the view that there was no reliable evidence to show the existence of the loan and the threat [33]. In any event, the applicant was only subject to verbal threat and never sustained any physical injuries, which suggested that the creditor merely wanted to exert pressure on her rather than to kill/harm her [27], [31]-[40].

13.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk [60]-[66], [90], BOR 2 and BOR 3 risk [67]-[78], [91]-[92] or Torture risk [79]-[83], [93]. Furthermore, internal relocation was also available to her [84]-[89].

14.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

15.  The applicant has filed Form 86 on 27 May 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In the affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

17.  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).

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

19.  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.”

20.  The Board decided to assess the appeal without an oral hearing. It had found that there was no reliable evidence to prove the debt, which calls in the question whether there should have been an oral hearing for the applicant to give her explanation.

21.  However, the Board further consider the case and found that, even if the applicant’s evidence were accepted, the conduct of the creditor did not give rise to any of the applicable risks.

22.  The applicant has not raised any valid ground to challenge the Board’s Decision.

23.  In the circumstances, there is no reason for this Court to interfere with the Board’s decisions as to no oral hearing is necessary and that there is no realistic prospect of success in the applicant’s intended judicial review of the Board’s Decision.

CONCLUSION

24.  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