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

HCAL 1009/2019

[2023] HKCFI 1831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1009 of 2019

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.  The applicant applies for leave to apply for judicial review of the Decision dated 22 March 2019 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, 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 a national of Indonesia.  On 5 November 2010, she last entered Hong Kong as a foreign domestic helper and was permitted to remain until 5 November 2012, or two weeks after the termination of her employment contract.  On 12 January 2011, her employment contract was prematurely terminated.  On 13 January 2011 and 7 July 2012, she was arrested by the Hong Kong police for criminal offences and served the respective sentences.  She had previously lodged a torture claim but later withdrawn on 28 January 2013.  On 24 March 2014, she lodged a non-refoulment claim, which was assessed on all applicable grounds other than that on torture risk[1]. Her claim was made on the basis that, if refouled, she would be harmed or killed by a loan shark called Mulyono.

5.  In brevity, the applicant borrowed a high-interest loan from Mulyono in around 2003 to pay the employment agency.  Since 2008, Mulyono had been chasing her for repayment.  In early 2009, Mulyono verbally threatened her.  Her last contact with Mulyono was in March or April 2009 when he visited her house demanding for repayment.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 9 of the Notice of Decision dated 18 January 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 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”); and

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”).

7.  By way of the Director’s Decision, the Director dismissed her claim as the level of risk of harm was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [17]; (ii) state protection would be available to her [18]; and (iii) internal relocation was a viable alternative [19].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 14 January 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [17].

9.  Having considered the evidence, the Board made the following findings. The Board noted that she was inconsistent in her evidence on the details of the loan, such as the sum borrowed, the sum repaid, the date of the loan, and whether she could use her grandfather’s house as a collateral to the loan despite she was not the legal owner of the house.  Meanwhile, on the applicant’s evidence, her grandfather was never harassed by the loan shark [24]-[44].   In light of these inconsistent and problematic evidence, the Board concluded that the applicant’s claim lacked credibility [51]-[52].

10.  In passing, the Board found that the applicant would be able to find work and shelter to support herself upon return [53]-[57].  For these 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.  The applicant has filed Form 86 dated 12 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affidavit in support of her application, the applicant said she had borrowed money from the loan shark and she will be killed if she returns to her home country. She further said that her parents left her when she was very young to live with her grandparents, who have passed away.

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 Decisions 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 grounds in paragraph 12, supra are not valid to challenge the Board’s Decision.

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

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 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