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

HCAL 1760/2019

[2024] HKCFI 2271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1760 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decisiondated 30 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Also, the applicant’s son, born in Hong Kong on 24 January 2017, who was an applicant in the non-refoulement claim before the Director and the Board, was not named in Form 86. This Court intended to clarify this matter with the applicant. The Court fixed a date of 26 June 2024 for the hearing and the applicant was duly notified. However, she was absent without any prior notice to the Court. In the circumstances, the Court will proceed to consider her application on paper.

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 38, is an Indonesian. She last arrived in Hong Kong on 17 December 2015 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 17 October 2016 and she overstayed since 1 November 2016. The applicant surrendered to the Immigration Department on 3 November 2016. She was convicted for overstaying on 11 January 2017 and was sentenced to imprisonment of two days suspended for twelve months. The applicant made a non-refoulement claim on in July and August 2017. The claim was made on the basis that, if refouled, she would be harmed or killed by (i) her husband, (ii) her husband’s creditor (“the creditor”) and (iii) staff from a bank (“the bank”) which she borrowed money from.

5.  According to the applicant, she married her husband in around 2005. In mid-2015, she took out two loans from the bank to build a house, with one of them under her mother’s name. Subsequently, she found out that she overestimated her repayment ability, so she came to Hong Kong to work as a FDH in late 2015. While working in Hong Kong, the applicant remitted money back to her husband for repayment of the loan to the bank. Yet, in around early 2016, she found out from her mother that her husband never repaid the loan for her. Around 2-3 weeks later, the applicant was informed by her sister that her husband also borrowed a loan from the creditor using the applicant’s identity card, with her motorcycle was used as a collateral. As the applicant’s husband subsequently disappeared, the creditor and the bank went after the applicant. She managed to reach her husband by phone on three occasions, who showed an indifferent attitude towards the outstanding loan. Thereafter, the applicant lost contact with him. 

6.  Meanwhile, the applicant had an affair in Hong Kong and got pregnant. On 24 January 2017, she gave birth to her son. When her mother discovered that she gave birth to a child out of wedlock, they had an intense argument and the applicant had no contact with her mother thereafter. In around August 2017, the applicant suddenly received a call from her husband. They had an argument over the phone regarding the outstanding loan, after which the applicant changed her mobile phone number to avoid her husband. In late 2017, the applicant’s daughter disclosed the applicant’s extramarital affairs to her husband and told him that the applicant had given birth to a baby in Hong Kong. The applicant’s husband got furious about this and threatened to kill the applicant.

7.  As the applicant failed to repay her loan to the bank, staff from the bank kept coming to her parents’ home demanding repayment. Meanwhile, the creditor was also looking for the applicant as the loan from her husband was taken out using her identity card.  

8.  The applicant was of the view that the police would not offer help to her because it was a personal problem. She also considered internal relocation not viable because she lacked financial capability for relocation and that she also had no friends or relatives living elsewhere in Indonesia.

9.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 26 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 absence or low intensity and frequency of past ill-treatment from her husband, the creditor and staff from the bank indicated that they had no real intention to seriously harm or kill the applicant [15]; (ii) state protection would be available to her upon her return [16]; (iii) internal relocation would be viable [17] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [18]-[23], Persecution risk [24]-[28] or Torture risk [29]-[31].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 26 February 2019, the Board conducted an oral hearing.

13.  Regarding the loan from the bank, the Board did not find the applicant to be at risk of harm because evidence indicated that the loan had been repaid [38]-[39]. In relation to the loan from the creditor, the Board was skeptical that her husband could use her identity card to procure the loan in her name. In any event, even if this was accepted, the Board considered the claimed risk of harm from the creditor speculative because according to the country of origin information loan sharks would more likely resort to forfeiture of the collateral rather than violence [40]-[42]. As to the applicant’s claimed threat from her husband, given that he had disappeared and had no contact with the applicant for years, the Board did not accept that he still have the intention to harm the applicant upon her return [44]. The Board further considered that the applicant’s family would provide help to her if necessary [46].

14.  Based on such findings, the Board accepted that although the applicant may suffer some discrimination as a single mother with an illegitimate child, this would not amount to harm that reached the requisite level of severity [49]. The Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [9]-[23], [52]-[56].

15.  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

16.  The applicant has filed Form 86 dated 25 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

18.  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).

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

20.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appealheld:

“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.”

21.  For the reasons above, the Board found that any risk of harm to her because of loans taken out from the BRI Bank or from a loan shark or because the son was born out of wedlock to be very low.

22.  The applicant has raised no valid reason to challenge the Board’s finding of the facts.

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

CONCLUSION

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