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

HCAL 793/2019

[2023] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 793 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 20 February 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. She entered Hong Kong as a foreign domestic helper on 1 July 2010 and was permitted to remain until 5 March 2012. However, her employment contract was terminated prematurely on 26 July 2011. She was required to leave on or before 9 August 2011. She did not depart and had overstayed since 10 August 2011. On 15 February 2012, she was arrested by the police for overstaying. On 25 June 2014, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her creditor or be forced to marry him for her default in repaying the loan.

5.  According to the applicant, her mother borrowed a loan from the creditor to cover her father’s medical expense in early 2005. However, unfortunately, her father passed away in around May 2005. Her mother was only able to repay the interest up until October 2006. Afterwards, the creditor started to chase for repayments. The creditor repeatedly visited her house, demanding the settlement of the loan. Failing to settle the loan, the applicant was required to marry him. Out of fear, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 19 September 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 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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as the level of risk of harm from the creditor was assessed to be low. In elaboration, the Director found that (i) the applicant did not suffer any injuries that attained the minimum level of severity [15]; (ii) there was no evidence to show that the creditor had real intention to cause harm or even kill her [16]; (iii) state protection would be available to her [17]; and (iv) internal relocation was a viable alternative [18].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 11 February 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [7].

9.  The Board recapped the applicant’s claim and her personal background [28]-[36]. It also clarified the material aspects of her claim at the hearing [41]-[61]. The Board cast doubt on the applicant’s evidence in relation to the debt [65]. In particular, the Board noted that the applicant was inconsistent as to the details of the alleged first visit in October 2006, whether she was present or not [66]-[67]; that she was also inconsistent as to her presence in the alleged second visit in November 2006 [68]; and that the discrepancy in the applicant’s evidence in relation to the creditor’s visit, and his threatening messages was concerning and the applicant offered no credible explanations [70]-[71]. In this premise, the Board refused to accept the fundamental basis of the applicant’s claim.

10.  For the above 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 21 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In her affirmation in support of her application, the applicant has raised the grounds below.

(1)  The Board required her to remember the facts. But those facts happened years ago and she was unable to remember them correctly. The Board should have taken this factor into account when it assessed her evidence.

(2)  The Board at paragraph 74 of the Board’s Decision found that her daughter could have remained in Hong Kong. However, it had not taken into account that her father, though a Hong Kong resident, has a wife in Hong Kong. This is the reason for their separation. If her daughter is returned to Indonesia, she will be deprived of the opportunity of receiving good education and chance of work in Hong Kong.

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 as set out in paragraph 12 above do not assist her application. The Board’s refusal to accept the applicant’s evidence is not purely based upon the accuracy of her stated events. The Board found inconsistencies which the applicant was unable to explain as well. In the circumstances, there is nothing amiss for the Board to have come to its conclusion as it did in relation to the credibility of her evidence. See paragraph 9 supra. As to paragraph 74 of the Board’s Decision, the Board did not assert that her daughter could stay in Hong Kong. The Board simply said that the applicant asserted that her daughter could stay in Hong Kong. This is a matter of her own choice. In any event, her daughter is not an applicant in this application. This issue is irrelevant for this application.

17.  There is no valid ground to challenge the Board’s Decision.

18.  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.

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

CONCLUSION

20.  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