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

HCAL 837/2019

[2023] HKCFI 1632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 837 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 absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.  The applicant applies for leave to apply for judicial review of the Decision dated 18 March 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”), 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 had been a foreign domestic helper in Hong Kong since 2005.  Her last permission to stay allowed her to stay until 19 November 2014.  However, she did not depart and had overstayed since 20 November 2014.  On 12 November 2015, she was arrested for overstaying.  On 24 November 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her father’s loan shark because she was unable to repay her father’s loan and refused to marry him.

5.  In brevity, the applicant’s father borrowed a loan from the loan shark in 2003.  However, he was unable to afford the repayments.  In mid-2004, the loan shark demanded the applicant’s father to arrange a marriage between the applicant and the loan shark in exchange for the settlement of the loan.  The applicant escaped.  However, the loan shark found her and raped her on two occasions.  Thereafter, she also suffered subsequent rapes and was confined by the loan shark for eight days in his house.  After she escaped, she went to stay in Jakarta.  In 2005, she came to Hong Kong for employment.  Around half a year, she returned to Indonesia but did not encounter the loan shark.  However, her mother informed her that the loan shark was still looking for her.  Out of fear, she decided to seek protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 4 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed fear of harm from the loan shark was groundless.  In elaboration, the Director found that (i) the perceived risk of harm was not imminent or substantial [13]-[16]; (ii) state protection would be available to her [17]-[19]; and (iii) internal relocation was a viable alternative [20]-[21].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 29 November 2018, the Board conducted an oral hearing for her appeal, during which she was given the opportunity to make submissions with the assistance of an interpreter [8]; [26].

9.  Having considered the evidence, the Board found that the applicant’s claim was not credible.  In particular, she was inconsistent as to whether she inquired the situation of the loan shark with her sister.  Despite the fact that her father’s loan had been outstanding for 15 years, throughout this period, the loan shark had never harmed her other family members or her father. Her evidence that the loan shark’s men were able to locate her was implausible.  Her explanation as to why she did not report to the police was not persuasive.  In addition, she had provided inconsistent accounts on how did she escape from the loan shark’s house [28]-[39].  In light of these inconsistencies, the Board found that the applicant’s claim lacked credibility and dismissed her appeal.

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

10.  The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant said that the creditor will kill her if she returns to her country.

DISCUSSION

12.  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).

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

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.  The Board, for the reasons given above, had rejected the applicant’s evidence on the facts of her case. The grounds in paragraph 11 above are not valid to challenge 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