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HCAL 1738/2019 [2024] HKCFI 2039
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1738 of 2019
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Iis Karlina |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 14 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested an oral hearing. However, she was absent on the date of hearing on 26 June 2024. 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 arrived in Hong Kong on 23 January 2016 to work as a foreign domestic helper (“FDH”). Upon completion of her employment contract, she did not depart Hong Kong and overstayed since 8 May 2017. The applicant surrendered to the Immigration Department on 24 September 2018 and she made a non-refoulement claim on 6 December 2018 and 18 December 2018. The claim was made on the basis that, if refouled, she would be harmed or killed by her mother’s creditor (“the creditor”) because she refused to marry him to set off the loan.
5. According to the applicant, in about 2015, her mother took out a loan from the creditor to pay for the medical expense of her father. As the applicant’s mother had no income, it was decided that the applicant should come to Hong Kong to work in order to repay the loan. The applicant started to work as a FDH in Hong Kong in February 2015. She worked until May 2015 when her employment contract was prematurely terminated, after which she returned to Indonesia.
6. One day in late 2015, when the applicant was at home with his family, the creditor came with five of his underlings, who carried long swords with them. When the applicant told the creditor that she was unable to repay because she was jobless, the creditor and his underlings assaulted the applicant and her parents with bare hands for around 30 minutes. Before leaving, the creditor threatened to kill the applicant and her family if she still failed to repay the loan the next time. Alternatively, the applicant could marry him to set off the loan.
7. The applicant suffered bruises all over her body and there was bleeding at her lower lip. She also lost one tooth and had open wounds at her right forearm as well as lower back. The applicant did not seek any medical treatment for her injury because she had no money. Meanwhile although she reported the assault to the police, they refused to follow up as they considered her problem personal in nature.
8. A week later, the creditor returned. Without seeking the applicant’s consent, her parents agreed that she should marry the creditor in order to set off the loan. She refused to do so. In January 2016, the applicant arrived in Hong Kong again to work as a FDH.
9. The applicant last contacted her family in April 2016 and learnt that they had relocated. She did not maintain contact with them because she did not want to be pressured into marrying the creditor.
10. The applicant was of the view that she could not seek protection from the police because they would consider her matter private in nature and refuse to help. The police were also corrupt and she had no money to bribe them. The applicant considered internal relocation not viable as well because she had no family ties elsewhere and she also worried that she would be located by the creditor through his extensive network.
11. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 7 March 2019 (“the Director’s Decision”).
The Director’s Decision
12. The Director considered the applicant’s claim in relation to the following risks:
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”);
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”); and
d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).
13. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from the creditor indicated that he had no real intention to seriously harm or kill the applicant, so that the risk of harm was not as imminent as she claimed [12] - [14]; (ii) state protection would be available to her upon her return [15] - [18]; (iii) internal relocation would be viable [19] - [23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24] - [29], Persecution risk [30] - [34] or Torture risk [35] - [38].
The Board’s Decision
14. The applicant appealed the Director’s Decision to the Board. On 28 May 2019, the Board conducted an oral hearing.
15. The Board had doubts towards the applicant’s claim about the existence of the loan because (i) her father was already receiving poverty subsidy that covered more or less every sort of medical treatment and (ii) it was not credible that the creditor would lend such a large sum of money in view of the difficulty for the applicant and her family to repay [65]. The Board also did not accept the applicant’s claim about the relocation of her family [66] and rejected her claim that she had made a report to the local police, given that the country of origin information showed there was no police station in her locality [67]. Furthermore, the applicant’s delay in seeking non-refoulement protection also damaged her credibility [68].
16. The Board considered the core assertions in relation to the applicant’s claim fabricated and wholly unreliable [69]. It did not accept that the applicant was a credible or reliable witness [70]. In any event, there was also no evidence of involvement from the authorities and the applicant’s claimed suffering did not reach the requisite level of severity [71] - [76].
17. Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [79] - [97], [101] - [104]. 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
18. The applicant has filed Form 86 on 24 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.
19. The applicant has submitted a statement of the grounds in support of her application. I shall summarize those grounds below.
(1) The Board’s Decision is wrong because it did not pay heed to BOR 2 provisions on right to life and he was not given sufficient time to prepare for his Board’s hearing.
(2) The Board did not appreciate the importance of state acquiesce in this case.
(3) The Director cherry pick the country of origin information unfavourable to his claim only.
(4) The Director was unfair, corrupt and incompetent as shown in the reports of the human right organizations. The Director also failed to attain the high standards of fairness and his decisions are Wednesbury unreasonable.
DISCUSSION
20. 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).
21. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
22. 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.”
23. In the Board’s Decision, the Board had recorded the questions put to the applicant at the hearing and the applicant’s answers. The Board rejected the applicant’s evidence after testing her evidence in the hearing. The Board was entitled to do so.
24. As to the grounds the applicant has raised above, they refer to the Director instead of the Board. However, they are her bare assertions without evidence in support. They are not valid reasons to challenge the Board’s Decision[1].
25. The applicant therefore fails to show that her intended judicial review of the Board’s Decision has any realistic prospect of success.
CONCLUSION
26. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 6th day of August 2024
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 6/8/2024
Iis Karlina
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 6/8/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no. :
USM 15699/19/3/64/I1658
Director of Immigration
Putative Interested Party’s ref. no. :
QA T/C 98/19 (formerly RBCZ 10047/19)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:
“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].
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