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HCAL 333/2024
[2024] HKCFI 1362
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 333 of 2024
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BETWEEN
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Heni-Novitasari |
Applicant |
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and |
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Torture Claims Appeal Board/ |
Putative |
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Non-refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 24 November 2023 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”), 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 31, is an Indonesian. She arrived in Hong Kong on 12 April 2018 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 13 March 2023 and she overstayed since 28 March 2023. The applicant was arrested by the police on 12 April 2023 for overstaying and she made a non-refoulement claim on 24 April 2023. The claim was made on the basis that, if refouled, she would be harmed or killed by her brother and her brother’s creditor.
5. According to the applicant, her brother took out a loan from the creditor for internet gambling in 2022. On 25 December 2022, her brother phoned her and asked her to settle his debt. Upon the applicant’s refusal, her brother threatened to pledge the title deeds of their house to secure the loan. The applicant knew that her brother would not succeed because the title deeds were kept by their aunt. On 28 December 2022, the creditor started to call the applicant 8-9 times per day, during which she only picked up the call two times. On the first occasion, the creditor cursed her and demanded for repayment. On the second occasion, the creditor threatened to kill her upon returning to Indonesia if she failed to settle the loan. The applicant changed her phone number when her employment contract was terminated on 13 March 2023 and she ceased to receive calls from the creditor.
6. On 29 December 2022, the applicant’s brother called again requesting her to settle his debt. The applicant believed that her brother would harm her if she refused to settle his debt because back in 2015, he hit her shoulder and kicked her leg when she refused to buy food for him. On 15 February 2023, she made part payment of her brother’s loan through her mother without telling her brother.
7. The applicant did not report the matter to the Indonesian police because the police station in her area was very far away and she had no money to bribe the police for help. She considered internal relocation not viable as well because she had no relatives elsewhere and lacked financial ability for relocation.
8. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 July 2023 (“the Director’s Decision”).
The Director’s Decision
9. 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”).
10. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past ill-treatment from her brother and her brother’s creditor indicated they had no real intention to seriously harm or kill her [11]-[12]; (ii) state protection would be available to her upon her return [14]-[17]; (iii) internal relocation is viable [13], [18]-[19] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [20]-[25], Persecution risk [26]-[31] or Torture risk [32]-[35].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 16 November 2023, the Board conducted an oral hearing.
12. The Board found that the applicant failed to provide any plausible explanation for her delay in making a non-refoulement claim. The claim that she was in fear of her brother and her brother’s creditor were also implausible given that the former was still a student in 2022 while she had never signed any document to guarantee the repayment of the loan to the latter. In any event, her reliance on a fight she had with her brother back in 2015 as her basis of claim was too far-fetched [34].
13. The Board found the applicant dishonest and that she was not a genuine claimant. They were not convinced that she overstayed due to the claimed threat from her brother and her brother’s creditor [35]. They concluded that the applicant’s case failed to meet any of the requirements under Torture risk [22]-[32], [37]-[45], [48]-[49], BOR 2 and BOR 3 risk [50]-[56] or Persecution risk [57]-[65]. Furthermore, internal relocation and state protection were available to her taking into account the country of origin information [46]-[47], [66]-[70].
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 dated 16 February 2024 for leave to apply for judicial review of the Board’s Decision.
16. In her 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. Having considered the applicant’s evidence, the Board came to the conclusion:
“35. The number and nature of inconsistencies and implausibility in her evidence are many and serious and have undermined its reliability. … I am not convinced that she had suffered any mental pain and sufferings. The centerpiece of her story does not stand. I find her dishonest and unreliable, and that she is not a genuine claimant.”
21. The applicant has raised no valid ground to challenge the Board’s Decision.
22. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
CONCLUSION
23. 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 4th day of June 2024
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(M.O. WONG)(Ms)
for Registrar, High Court
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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 4/6/2024
Heni-Novitasari
Applicants’ 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 4/6/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21971
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 453/23 (Formerly RBCZ/5000414/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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