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

HCAL 980/2024

[2024] HKCFI 2082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 980 of 2024

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 16 May 20204 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 54, is a national of Indonesia. She came to Hong Kong to work as a domestic helper in 2018. Her employment contract was prematurely terminated. She did not depart and overstayed since 14 January 2019. She was arrested by police and referred to the Immigration Department. She lodged her non-refoulement claim by a written signification dated 4 October 2023 on the basis that, if refouled, she would be harmed or killed a moneylender because she was unable to repay her debt. She is now being detained by the Immigration Department.

5.  According to the applicant, in June 2017, she had borrowed IDR275,000,000.00 from the moneylender for her youngest brother’s medical expense and for the purchase of a new family house. She was unable to repay her debt or the interest. The moneylender had threatened to harm or kill her if she did not repay her loan. She came to Hong Kong to work as a domestic helper. Details of her story can be found in paragraph 6 of the Director’s Notice of Decision dated 17 January 2024 (“the Director’s Decision.”).

The Director’s Decision

6.  The Director had rejected her torture claim. Therefore, 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”);

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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the moneylender has no intention of harming her and there is no imminent risk if she returns to Indonesia [12]; (ii) state protection will be available to her [14]-[20]; and internal relocation is viable [21]-[23].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 26 April 2024, she appeared before the Board.

9.  Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion that there is no evidence to show that the applicant will have any real risk of harm if she returns to Indonesia. State protection will be available to her and internal relocation is viable. [141]-[155]

10.  For the above reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 21 June 2024 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has raised no specific ground to challenge the Board’s Decision in her affidavit.

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 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).

14.  The Court will bear in mind that the Board’s Decisions 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.  For the reasons given above, the Board found that she does not have any real risk of harm if she returns to Indonesia, which is obvious from the applicant’s facts given to the Director and the Board.

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

CONCLUSION

19.  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