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

HCAL 1517/2022

[2024] HKCFI 396

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1517 of 2022

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 present in open court;

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 2 December 2022 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), she appeared before the Court on 10 January 2024.

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 33, is a national of Indonesia. She had been working in Hong Kong as a foreign domestic helper since 2021. On 13 January 2021, her employment contract was prematurely terminated and she overstayed in Hong Kong since 28 January 2021. She was arrested by the Immigration Department on 1 September 2021. The applicant raised a non-refoulement claim on 14 September 2021. The claim was made on the basis that, if refouled, she would be harmed or killed by her creditor (“the loan shark”) because of a defaulted loan payment. On 8 October 2021, the applicant was convicted of two offences in relation to breach of condition of stay and was sentenced to imprisonment for 10 months.

5.  According to the applicant, in mid-2013, her husband told her that he had borrowed money from the loan shark with the applicant acting as the guarantor for the loan. The applicant sent money to her husband every month to help him repay the loan. In around April 2014, she was no longer able to contact him after he changed his phone number. The applicant therefore ceased to repay the loan for her husband and the loan had been in default since then.

6.  The applicant returned to Indonesia for holiday in November 2015. She was not approached by the loan shark. One day in 2017, the loan shark sent a letter to her parents’ house demanding loan repayment. A month after receiving the letter, two men came to her parents’ house seeking for the applicant’s whereabouts. They also threatened her mother that the applicant would not be safe if she failed to repay the loan. On 23 October 2017, the applicant went back to Indonesia for holiday. She stayed at her friend’s house rather than her parents’ house because she was scared of the loan shark. The applicant returned to Hong Kong on 5 November 2017. She did not encounter the loan shark or any of his underlings during her stay at her friend’s house.

7.  The applicant and her family members had never reported the threats from the loan shark to the police because she thought they were corrupt and she could not afford bribing them. She considered internal relocation within Indonesia not viable as well because she did not have the financial means for relocation and did not feel safe living alone elsewhere. She was also of the view that she could still be harmed by the loan shark even if she relocated.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 November 2021 (“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 the perceived harm from the loan shark and/or his underlings was not as serious and imminent as the applicant claimed. Her decision to go back to Indonesia in 2015 and 2017 was also inconsistent with a person who is genuinely in fear of being harmed or killed [14]-[16]. In any event, the Director was of the view that (i) state protection will be available to her upon her return [17]-[21]; (ii) internal relocation is viable [22]-[29] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [30]-[35], Persecution risk [36]-[40] or Torture risk [41]-[44].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 20 June 2022, the Board conducted an oral hearing.

12.  The Board considered the significant delay by the applicant in lodging the non-refoulement application undermined her credibility. The Board also found the account of events given by the applicant unreliable, suspicious and inconsistent. As such, the Board rejected the stated threats by the loan shark as claimed by the applicant [26], [30]-[37].

13.  In any event, even if the account given by the applicant were accepted, her case still failed to meet any of the requirement under Torture risk [3]-[6], [44]-[46], Persecution risk [7], [47]-[50] or BOR 2 and BOR 3 risk [8]-[14], [51]-[56]. Furthermore, state protection and internal relocation were also available to her [15]-[16], [42]-[43], [57]-[59]. 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

14.  The applicant has filed Form 86 dated 16 December 2022 for leave to apply for judicial review of the Board’s Decision.

15.  In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

16.  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).

17.  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 she understands the Board’s Decision and she does not think the Board’s Decision is wrong. However, she said she does not want to return to Indonesia.

18.  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.”

19.  The Board had given the following reasons in support of its findings:

“31. At the appeal hearing, the Appellant was evasive to many of the questions put to her. She thought a bit before answering questions, even for straight forward questions. She did not convince me to be a reliable witness or that her version of story is believable. … There were quite a number of suspicious allegations and inconsistencies during the hearing and contradictions between what she said at the hearing and what was recorded in the hearing bundle….

37. On the whole I do not find the Appellant to be telling the truth. I find that her case was both vague, unreasonable, and unbelievable in both her oral evidence and her written case. I accept as true her personal and family background, her education and working history as claimed. All the other matters including the stated threats by the loan shark are not accepted. …”

20.  The applicant has raised no valid reason to challenge the Board’s Decision. She had also said that she did not find the Board’s Decision wrong before the Court.

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

CONCLUSION

22.  I refuse to grant leave to the applicant 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