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

HCAL 1434/2019

[2024] HKCFI 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1434 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 Applicant being present 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 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. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), her application is dealt with 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 38, is a national of Indonesia.  She last entered Hong Kong to work as a foreign domestic helper on 28 August 2014.  She overstayed since 15 September 2014 and remained unlawfully in Hong Kong until the police arrested her on 6 March 2015.  Subsequently, the applicant was released on recognizance and she lodged a non-refoulement claim on 20 February 2018.  

5.  According to the applicant, she claimed that her husband was a pathological gambler.  On one occasion, after the applicant’s father refused to hand over the title deeds to her husband, which he intended to give to the loan shark, he killed her father with a chopper.  The applicant’s husband then took the title deeds and gave it to the loan shark.  Upon possession of the title deeds, the loan shark evicted the applicant’s mother from her home.  Her mother had reported the death of her father and the circumstances surrounding the death to the police, but the police would not do anything without being paid because the loan shark was very powerful.  Subsequently, the applicant went back to holiday in Indonesia and lived with her mother who resided at a relative’s home.  Her husband discovered the applicant’s whereabouts.  She fled and stayed at the dormitory provided by her employment agency for two months.  She then left Indonesia upon the issue of her visa and never returned.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 29 March 2018 (“the Director’s Decision”).

6.  The applicant claimed that relocation was not feasible because her husband could still locate her.  Her mother told her that her husband threatened that he would kill the applicant if she did not remit money to him [13].  She also disclosed for the first time in the Notice of Appeal/Petition that she was involved in extramarital affair in Hong Kong, which may also be a reason for her husband to harm or kill her.

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that: (i) the risk of being harmed or killed by her husband upon return to Indonesia was too far-fetched and merely speculative [14]; (ii) state protection will be available to her upon her return [15] - [16]; (iii) internal relocation is viable [17] and (iv) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [18] - [23], Persecution risk [24] - [29] and Torture risk [30] - [33].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board.  On 7 January 2019, the Board conducted an oral hearing with an interpreter.   

10.  Having considered the applicant’s evidence, the Board did not find that the applicant a credible witness or that aspects in support of her claims were credible due to (i) the significant delay in lodging the application; (ii) inconsistencies of her own evidence given to the immigration officer and the Board and (iii) vague evidence concerning the dates of significant incidents [80] - [82].  In any event, the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [85] - [89], [94] - [97], Persecution risk [90] - [93] and Torture risk [98] - [102]. Furthermore, state protection and internal relocation were also available to the applicant [66] - [71].

11.  For the above reasons, the Board dismissed her appeal and confirmed the Director’s Decision.

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

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

13.  In support of her application, the applicant said in her affirmation that her life will be in danger if she returns to Indonesia as her husband will kill her as he had killed her father.

DISCUSSION

14.  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).

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

16.  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.”

17.  The Board, for the reasons it has given, did not accept the major facts in support of the applicant’s claim.  The applicant fails to raise any 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.

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