NINIK ETIKA SARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2651/2018

[2021] HKCFI 1214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2651 of 2018

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:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 21 November 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“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 (“RHC”), I shall 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 an Indonesian national. She came to Hong Kong as a domestic helper for a number of times. The last time happened on 3 May 2012 and she was permitted to stay until 3 May 2014 or two weeks after termination of her contract, whichever is earlier. Her contract was terminated prematurely. She overstayed and was arrested by police. She raised her non-refoulement claim with the Immigration Department by written representation dated 3 September 2014.

5.  The applicant claimed that, if refouled, she would be harmed or killed by a loan shark, Andre, because she failed to repay him the principal of her mother’s loan. The loan was made by her mother for the purpose of repairing the family house and for her father’s medical expenses. Her father was suffering from heart disease. The loan is 100 million Indonesian Rupiah. She is responsible to repay the debt as she is the eldest child in the family. She had paid some interest on the loan. But she was unable to make payment since her employment was terminated. The loan shark had expelled her family from their house. She was threatened by the loan shark that if she did not pay the debt, she would be killed if she returned to Indonesia. Details of the incidents are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 Notice of Decision dated 19 December 2017 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of being harmed or killed if she returned to Vietnam was low [16]; that state protection would be available to her [30] and that internal relocation was an option open to her [40].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision. She appeared before the adjudicator on 15 August 2018.

9.  The Board had had a protracted examination and cross-examination of her evidence. It came to its conclusion that the applicant’s story of incurring a loan in Indonesia and that she feared harm at the hands of the loan shark should she return to Indonesia had no credibility and therefore her claims relating to this loan and the loan shark were untrue. [37] It found that the applicant had not established that there were substantial grounds which supported the conclusion that she would face any risk of ill-treatment as claimed if she returned to Indonesia. The Board dismissed her claim on all risks in paragraph 6 above.

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

10.  The applicant filed Form 86 on 23 November 2018 for leave to apply for judicial review of the Board’s Decision. In the affirmation in support of her application, the applicant simply attached the papers in the hearing bundle as exhibits without specifying any grounds.

DISCUSSION

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

12.  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.”

13.  Her affirmation in support of her application does not assist her.

14.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.  I refuse her application for leave 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