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

HCAL 2013/2019

[2024] HKCFI 2597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2013 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 Decision dated 11 July 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 2^nd Decision”) on BOR 2 risk. The Court will also take into consideration of the Board’s 1^st Decision dated 7 February 2017 as the facts are the same.

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 16 September 2024. I shall deal with 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 47, is an Indonesian. She last arrived in Hong Kong on 7 July 2009 to work as a foreign domestic helper (“FDH”). Her employment contract was prematurely terminated on 19 September 2009 and she overstayed since 4 October 2009. The applicant was arrested by the police on 19 November 2012 and was sentenced to imprisonment for overstaying on 23 November 2012. On 11 April 2013, the applicant was arrested again for taking up employment whilst being a person in respect of whom a removal order is in force. She was convicted of the said offence and was sentenced to imprisonment of 15 months on 15 April 2013.

5.  On 23 May 2014, the applicant made a non-refoulement claim. The claim was made on the basis that, if refouled, she would be harmed or even killed by (i) her brother-in-law as she refused to marry him after her husband passed away and (ii) her neighbour because she was unable to repay the loan she borrowed from her in 2005.

6.  According to the applicant, her brother-in-law forced her to marry him after her husband passed away in 2005. In the same year, the applicant’s father had an accident, of which the applicant believed was caused by her brother-in-law because her father had rejected his marriage proposal. The applicant borrowed some money from her neighbour in order to pay her father’s medical expenses, but he passed away after staying in the hospital for a week.

7.  Thereafter, her brother-in-law assaulted her on two occasions because she refused his marriage proposal. He also threatened to kill her if she insisted not marrying him. The applicant treated her wounds at a government clinic, but she did not report the assault incidents to the police.

8.  After the applicant gave birth to her youngest child, she left her hometown for Jakarta. In February 2006, the applicant came to Hong Kong again to work as a FDH, after which she had never returned to Indonesia. In 2007, while the applicant was in Hong Kong, her neighbour threatened her over the phone that if the applicant failed to repay her loan, she would kill her and forfeit her mother’s house. On 18 August 2007, the applicant changed her phone number to avoid the continuous disturbance from her neighbour.

9.  The applicant last contacted her mother in August 2007, who warned her not to return because her brother-in-law and her neighbour were still after her. The applicant had never sought protection from the police because she believed that they were corrupt and would only help after receiving bribes. She also considered internal relocation not viable because she lacked the financial capability to live elsewhere.

10.  In the additional facts provided by the applicant, she claimed that her brother-in-law and her neighbour were still threatening her directly and indirectly through her mother.

11.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 29 May 2015 (“the Director’s 1^st Decision”) and paragraph 5 of the Director’s Decision dated 16 May 2017 (“the Director’s 2^nd Decision”).

The Director’s Decisions

12.  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”).

13.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low frequency and intensity of past ill-treatment by her brother-in-law and the absence of past ill-treatment by her neighbour indicated a small future risk of harm upon her return to Indonesia [16]; (ii) the past action taken by her brother-in-law and her neighbour showed that they had no real intention to seriously harm or kill the applicant [17]-[18], [20]; (iii) there was insufficient evidence indicating that her brother-in-law and her neighbour were still pursuing her [19], [21]; (iv) state protection would be available [23]-[24]; (v) internal relocation would be viable [25]-[26] and (vi) the applicant’s case failed to meet any of the requirements under BOR 3 risk [27]-[30], Persecution risk [31]-[35] or Torture risk [36]-[38].

14.  By way of the Director’s 2^nd Decision, the Director also rejected the applicant’s claim on BOR 2 risk because there was no evidence to show that her right to life under BOR 2 would be violated upon her return.

The Board’s Decisions

15.  The applicant appealed the Director’s 1^st Decision to the Board. On 29 June 2016, the Board conducted an oral hearing.

16.  The Board found the account given by the applicant unconvincing and generally lacked credibility [36]. It was not accepted that she came to Hong Kong to avoid that the claimed threats from her brother-in-law and her neighbour because these were not mentioned in her earlier evidence and that there were also inconsistencies within her evidence [37]-[41]. Meanwhile, the applicant’s delay in raising a non-refoulement claim further damaged her credibility [42]. In any event, the applicant’s claim was based on bare assertions without any evidence in support and that her claimed injuries had not reached the requisite level of severity [43]-[45].

17.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 3 risk or Persecution risk [21]-[28], [46]-[49]. The applicant’s appeal was therefore dismissed and the Director’s 1^st Decision was confirmed (“the Board’s 1^st Decision”).

18.  The applicant also appealed the Director’s 2^nd Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification. The appeal was therefore proceeded on such basis [12].

19.  Based on the reasons in the Board’s 1^st Decision, the Board dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision (“the Board’s 2^nd Decision”).

Application for leave to apply for judicial review of the Board’s Decision

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

21.  In the affirmation in support of her application, the applicant says that the Board did not consider the risk that she will face and her life will be in danger if she returns to Indonesia.

DISCUSSION

22.  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).

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

24.  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.”

25.  Taking into consideration of the Board’s 1^st Decision, the Board was right to reach the Board’s 2^nd Decision as her claim on BOR 2 risk cannot succeed if she was unable to establish her claim on other applicable risks[1].

26.  Those reasons under paragraph 21 are her opinions only and they are not valid to challenge the Board’s Decisions.

27.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s 2^nd Decision.

DISPOSTION

28.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss her application.