CINDY BT JUNAEDI HARUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1998/2019

[2024] HKCFI 2560

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1998 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 10 March 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 1^st Decision”), which dealt with her claim on Torture risk, BOR 3 risk and Persecution risk. The Board had also made another Board’s Decision dated 2 July 2019 (“the Board’s 2^nd Decision”)  on BOR 2 risk. The Board’s 1^st Decision and the Board’s 2^nd Decision are collectively called (“the Board’s Decisions”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 9 September 2024 without prior notice to the Court. I shall deal with her application on paper.

The applicant

3.  The applicant, aged 42, is an Indonesian. She last arrived in Hong Kong on 3 July 2014 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 8 July 2014 and she overstayed since 23 July 2014. The applicant was arrested by the police on 8 September 2014 and she made a non-refoulement claim on 15 September 2014. The claim was made on the basis that, if refouled, she would be harmed or even killed by her parents’ creditor (“the creditor”)  unless she married him. On 16 September 2014, the applicant was sentenced to imprisonment of two weeks suspended for three years for overstaying.

4.  According to the applicant, her parents had taken out a loan from the creditor to support the living of the family. In around April 2014, the creditor came to her home threatening her parents that if they failed loan repayment, the applicant would have to marry him. In around May 2014, the creditor came again with his underlings repeating the same threat. He also attempted to hurt the applicant and her father, though no one was injured in the end.

5.  Thereafter, the applicant’s father made a complaint to the head of Neighbourhood Association, but was told to resolve the problem himself as this was a private matter. No report however was made to the police.

6.  Due to her reluctance to marry the creditor, the applicant decided to seek overseas employment opportunities again and left for an employment agency in Jakarta. During her stay at the agency, she was informed by her mother that the creditor had asked for her whereabouts. Eventually, the applicant arrived in Hong Kong to work as a FDH on 3 July 2014.

7.  The applicant was of the view that the police would not render assistance to her because they would simply regard her problem as a private matter. The applicant considered internal relocation not viable as well because the creditor was a drug dealer with extensive network in Indonesia, so that she would definitely be located by him. She also claimed that she had no friends/relatives she could rely on elsewhere and had no financial means for relocation.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 25 April 2016 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.  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”).

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. The Director found that (i)  the absence or low intensity and frequency of past ill-treatment by the creditor indicated a small future risk of harm upon her return to Indonesia [13]; (ii)  the applicant had no update about the status of her parents’ debt, so that it was her mere speculation that she would be forced to marry the creditor upon return [14]; (iii)  state protection would be available [15]-[17]; (iv)  internal relocation would be viable [18]-[21] and (v)  the applicant’s case failed to meet any of the requirements under BOR 3 risk [22]-[24], Persecution risk [25]-[27] or Torture risk [28]-[31].

11.  In the Notice of Further Decision dated 2 May 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”)  for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decisions

12.  The applicant appealed the Director’s 1^st Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification. The appeal was therefore proceeded on such basis [17].

13.  The Board noted that the applicant had only experienced a single attempted assault from the creditor, which was far from the requisite level of severity. The dispute concerned was private in nature with no evidence of involvement from the Filipino authorities. In any event, given that the applicant had no contact with her family since May 2014, she had no knowledge about the status of the loan, so that her claimed fear was merely a speculation. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 3 risk or Persecution risk [18]-[35]. Furthermore, state protection and internal relocation would also be available [36]-[37].

14.  The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

15.  The applicant also appealed the Director’s 2^nd Decision to the Board, but she was late in her application. She explained that the lateness was due to her inability to read and write English [8].

16.  The Board rejected the applicant’s explanation for the delay because a notice in Indonesian informing her what to do if she had enquiries was enclosed with the Director’s 2^nd Decision [11].

17.  The Board found there were no special circumstances that would make it unjust to disallow the late filing [12]. By the Board’s 2^nd Decision, the applicant’s appeal was dismissed and the Director’s 2^nd Decision was confirmed.

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

18.  The applicant has filed Form 86 dated 15 July 2019 for leave to apply for judicial review of the Board’s 1^st Decision. She did not make an application for judicial review of the Board’s 2^nd Decision.

19.  The applicant has raised the grounds below in support of her application:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s application;

(2)  the adjudicator acted in a procedurally unfair manner;

(3)  the Board’s Decision is unreasonable or irrational in the public law sense; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

20.  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).

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

22.  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.”

23.  For the reasons stated above, the Board dismissed the applicant’s appeal against the Director’s 1^st Decision.

24.  The reasons raised under paragraph 19 are the applicant’s bare assertions without any evidence in support. They are not valid reasons to challenge the Board’s 1^st Decision.[1]

25.  Although the applicant’s application in respect of the Board’s 1^st Decision is out of time, her application in respect of the Board’s 2^nd Decision is based on the same facts in the Board’s 1^st Decision. The Court therefore considers the facts of the Board’s 1^st Decision as the facts of the Board’s 2^nd Decision and takes into consideration of the Board’s 2^nd Decision in one go.

26.  For the reasons stated above, the Board dismissed the applicant’s appeal against the Director’s 1^st Decision.

27.  The reasons raised under paragraph 19 are the applicant’s bare assertions without any evidence in support. They are not valid reasons to challenge the Board’s 1^st Decision.

28.  Although the applicant has not applied for leave to judicial review the Board’s 2^nd Decision, even if she makes an application, her application stands no real prospect of success too because the Board had considered the facts in the Board’s 1^st Decision and the facts as found do not support her claim on BOR 2 risk.

29.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s 1^st Decision.

DISPOSITION

30.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 1^st Decision. Accordingly, I dismiss her application.