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

HCAL 1987/2019

[2024] HKCFI 2551

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1987 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 12 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. She appeared before the Court on 9 September 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 59, is an Indonesian. She first arrived in Hong Kong in 1996 to work as a foreign domestic helper. Her last employment contract was prematurely terminated on 13 November 2010 and she overstayed since 28 November 2010. The applicant was arrested by the police on 22 June 2015 and was subsequently sentenced to imprisonment of four months for overstaying. She made a non-refoulement claim on 14 July 2015. The claim was made on the basis that, if refouled, she would be harmed or even killed by the creditor of her late husband (“the creditor”).

5.  According to the applicant, she married her husband in 1984.  In around 2000, her husband took out a loan from the creditor to open a second-hand motorbike shop. Her husband had never made any repayment and he started to receive threats from the creditor in 2003. In 2005, when the applicant returned to Indonesia, the creditor approached her at her aunt’s place for loan repayment. Since 2005, the applicant also started to receive threatening calls from the creditor until she changed her number in 2007. In 2008, her husband committed suicide due to financial stress. The applicant believed that the creditor would harm her if she could not settle her husband’s debt.

6.  The applicant was of the view that she could not seek protection from the police because they were corrupt. She also considered internal relocation not viable because of her old age and that she could hardly survive without subsidies.  

7.  Details of the applicant’s story can be found in paragraph 8 of the Director’s Decision dated 13 February 2018 (“the Director’s Decision”).

The Director’s Decision

8.  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”).

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i)  the low intensity and frequency of past ill-treatment from the creditor indicated a small future risk of harm upon her return to Indonesia [13]-[14]; (ii)  it was the applicant’s mere speculation that she had the obligation to repay her husband’s loan [15]; (iii) state protection would be available [16]-[19]; (iv)  internal relocation would be viable [20]-[21] and (v)  the applicant’s case failed to meet any of the requirements under BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[35].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board.  On 20 March 2019, the Board conducted an oral hearing.

11.  The Board considered the inconsistencies in the applicant’s evidence about the debtor of the loan and the report to the police had undermined her credibility [37]. Furthermore, there was also no reliable evidence showing that the applicant would (i)  face antagonism from the creditor given the elapse of time; (ii)  be located by the creditor outside her locality; (iii)  suffer physical harm given the past behaviour of the creditor and (iv)  be denied state protection [38].

12.  Based on such findings, 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 [40]-[50], [60]-[77], [84]-[87]. Furthermore, the country of origin information also indicated the availability of state protection [51]-[57], [59] and internal relocation [78]-[83].

13.  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 15 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.  The applicant said that she was not satisfied with the Board’s Decision, but she did not raise any specific ground to challenge the Board’s Decision.

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 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).

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 wants to stay in Hong Kong until her case is settled.

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.  From the Board’s Decision, the adjudicator had considered the applicant’s evidence.  In my view, the Board was entitled to come to its views above.

20.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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