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HCAL 1300/2019
[2023] HKCFI 2479
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1300 of 2019
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BETWEEN
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Umi Maghfiroh |
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.
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, her application is therefore 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 is a national of Indonesia. She came to Hong Kong on 14 December 2015 and worked as a domestic helper. Her employment contract was prematurely terminated on 20 August 2016. She did not depart and remained in Hong Kong illegally. She applied for non-refoulement protection by way of a written submission dated 13 December 2016. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark due to an outstanding debt.
5. In short, the applicant had, in 2013, borrowed 2 tranches of loan for the total amount of HK$100,000 from a loan shark to run a business jointly with her friend. The business failed and her friend had also taken away the money and disappeared. She was unable to repay the loan. The loan shark did not harm her. In 2015, he proposed to marry her for settling the loans. The applicant refused this proposal because he was 68 already. The loan shark was very angry and he hit her face, with laceration on her upper lip. She received 2 stitches. He further threatened to hire a hit-man to kill her if she was unable to repay the loan. Her eldest sibling reported the matter to police, but the police did not take any action. She came to Hong Kong to work as a domestic helper in December 2015. In 2016, whilst she was in Hong Kong, she was informed that her mother had disappeared from home as she was pestered by the loan-shark and his people from time to time. She dared not return to Indonesia. Details of her claim are set out at paragraphs 7 & 8 of the Notice of Decision dated 26 February 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 it was unsubstantiated. In elaboration, the Director found that (i) the past experience indicated that the risk of harm upon her refoulement was low [12]; (ii) state protection would be available to her [14]; and (iii) internal relocation was a viable alternative [15].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 24 October 2018, the Board conducted an oral hearing for her appeal, during which she acted in person.
9. Having considered all the information, the Board found that it accepted the applicant had borrowed 2 loans from the loan-shark and she was unable to repay the money. The Board did not accept that the loan-shark would realize his threat and that state protection would not provide her with protection. The Board also did not accept that the loan-shark was so powerful that she would be located if she returned to Indonesia [58] – [61]. Furthermore, the Board was of the view that internal relocation was an option open to her if she returns to Indonesia [62] – [63].
10. For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. On 15 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.
12. The applicant has filed an affirmation, in which she enclosed the Board’s Decision, but did not set out any specific ground in support of her application.
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 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).
14. The Court will bear in mind that the Board’s Decision 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. The Board had, for the reasons given above, rejected the applicant’s claim.
17. There is no valid ground from the applicant 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 5th day of October 2023
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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 5/10/2023
Umi Maghfiroh
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 5/10/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10683/18/3/135/I1157
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 171/18 (formerly RBCZ/10147/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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