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HCAL 2549/2018
[2022] HKCFI 3671
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2549 of 2018
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Supriyatun |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
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 16 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 last entered Hong Kong on 3 June 2016 as a foreign domestic helper and was permitted to remain until 3 June 2018 or two weeks after the termination of the employment contract, whichever was earlier. Her employment contract was terminated prematurely. She applied for extension of time as a visitor and was permitted to stay until 18 August 2016. She did not depart and had overstayed since 19 August 2016. On 22 January 2017, she was arrested by the police for overstaying. By way of written significations bearing various dates in February 2017 and March 2017, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her loan shark.
5. According to the applicant, she was informed by her husband that he borrowed a loan from Ms. Saidah for his seafood business. However, her husband failed to repay the loan. In mid-2002, Saidah and her underlings visited the applicant’s house while she was in Singapore. They assaulted her husband and, in two incidents, video-called the applicant and threatened to harm her family if she failed to repay the loan. In 2004, she returned to Indonesia from her overseas employment. However, she could not locate her family members. She did not encounter Saidah during her time in Indonesia. Thereafter, upon the advice of a friend, she came to Hong Kong and stayed for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 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 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 her claimed fear of harm was groundless. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) her conduct was inconsistent with someone who was in need of protection [14]; (iii) state protection would be available to her [15]-[16]; and (iv) the internal relocation was a viable alternative [17].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 26 June 2018, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [5].
9. The Board considered the applicant’s evidence on the loan to be vague and unconvincing [49]-[51]. In particular, she was inconsistent as to when her husband borrowed the loan, the details of the loan and whether her husband had repaid the loan and how much he repaid. Meanwhile, she contradicted herself in what happened to her husband after he defaulted the loan payment [52]. Further, the Board noted that her subsequent conducts, after witnessing the alleged incident happened to her family member during Saidah’s third visit, were inconsistent with her claimed concerns over the family members [53]. In addition, the Board found that she delayed in seeking non-refoulement protection [54]. Taking into account all the above, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant has filed Form 86 dated 13 November 2018 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant said she does not want to go back she has no money to repay to the creditor. Until, now, she still does not know where her family members are in Indonesia. Her life will be safe in Hong Kong.
DISCUSSION
12. 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).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
14. 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.”
15. The grounds in paragraph 11 above are not valid grounds to challenge the Board’s Decision.
16. 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.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 14th day of December 2022
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(M.O. WONG)(Ms)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 14/12/2022
Supriyatun
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/12/2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10361/18/2/245/I1087
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3645/17 (Formerly RBCZ 11018/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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