FANNY POMALINGO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1902/2019

[2024] HKCFI 2472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1902 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 21 August 2014.

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 44, is an Indonesian. She last arrived in Hong Kong on 11 March 2016 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 16 May 2016 and she overstayed since 31 May 2016. The applicant surrendered to the Immigration Department on 29 July 2016. She was sentenced to imprisonment of 4 weeks suspended for 3 years on 15 December 2016 for overstaying. The applicant made a non-refoulement claim on 26 January 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because she failed to repay a loan for him.

5.  According to the applicant, she is married and had two daughters with her husband. In 2013, the applicant’s husband borrowed money from a loan shark. When he learnt that the applicant could not afford paying the loan for him, he beat her and cut her left forearm with a knife. He also pushed her head against the wall.

6.  Subsequently, as the loan was not repaid, the loan shark took possession of the applicant’s house and she had to move to live with her parents. In 2014, the applicant’s husband came to her parents’ house and threatened to kill her and her family if she still failed to repay the loan for him. He also hit her and tried to strangle her.

7.  In October 2014, the applicant first left for Hong Kong to work as a FDH. When her employment contract was terminated in December 2015, she returned to Indonesia and stayed at her friend’s place. Although the applicant did not encounter her husband, her friend told her that her husband had been looking for her.

8.  The applicant had never sought assistance from the police as she believed that they could not offer her round the clock protection. She also considered internal relocation not viable because her husband would still look for her everywhere within Indonesia.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 16 January 2018 (“the Director’s Decision”).

The Director’s Decision

10.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the past ill-treatment from the applicant’s husband did not attain the minimum level of severity [12]; (ii) the problem between the applicant and her husband was private in nature and there was no evidence that her husband had the means to search for her throughout Indonesia [13]; (iii) state protection would be available [14]-[16]; (iv) internal relocation would be viable [17]-[18] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24], Persecution risk [25]-[29] or Torture risk [30]-[32].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 19 November 2018, the Board conducted an oral hearing.

13.  The Board considered that the threat made by the applicant’s husband was an expression of anger and it was not persuaded that he intended to carry them out [31]. In any event, the incidents happened back in 2013 and 2014, which the Board found unlikely that the applicant’s husband would still harbor such anger and resentment towards the applicant [32]. Furthermore, the fact that the applicant was unmolested by her husband when she returned to Indonesia between December 2015 and March 2016 also showed that he lacked the ability to locate her anywhere within the country, so that internal relocation would be a viable option [33]-[34].

14.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [7]-[17], [36]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

15.  The applicant has filed Form 86 dated 8 July 2019 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 ground to challenge the Board’s Decision.

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. Before me, the applicant said that she did not think that the Board was wrong. She asked the Court to review the Board’s Decision.

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.  For the reasons given, the Board considers that the applicant fails to show that she will have any risk of harm by her husband if she returns to Indonesia. The applicant has not raised any valid reason to challenge the Board’s Decision.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSTION

22.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.