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

HCAL 669/2024

[2024] HKCFI 1775

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 669 of 2024

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 oral submissions by the Applicant 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 1 March 2024 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”), I shall deal with her application on paper.

The applicant

3.  The applicant, aged 30, is an Indonesian. She last arrived in Hong Kong on 10 October 2018 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 7 November 2020 and she overstayed since 22 November 2020. The applicant was arrested by the police on 23 November 2020 and she made a non-refoulement claim on 27 November 2020. The claim was made on the basis that, if refouled, she would be harmed or killed by her mother’s creditor (“the creditor”) due to her outstanding debt. The applicant also worried that she would be discriminated by her relatives and stepmother because she gave birth to a child out of wedlock.

4.  However, the applicant had absconded since 10 March 2022, so that no further action could be taken on her non-refoulement claim. On 21 August 2023, the applicant was re-arrested by the police, after which she applied to resume processing of her non-refoulement claim.

5.  According to the applicant, her mother took out a loan from the creditor in 2016 to renovate the house and to support the education of the applicant’s stepbrother. One day in March 2017, when the applicant and her stepbrother were at home, the creditor and two of her underlings came to demand loan repayment and broke the door as well as the windows of her house (“the March 2017 incident”).  A week later, the creditor called the applicant and threatened that if she failed to repay, her life would become miserable and she would not live.  In August 2017, the applicant went to Singapore for work after receiving training at an employment agency. She stayed there for six months and returned to Indonesia in February 2018.  The applicant stayed at home for a few weeks before she went for training again. In October 2018, the applicant came to Hong Kong for work, shortly after which, her mother passed away.  

6.  In May 2019, the creditor called the applicant and warned her that she was solely responsible for her mother’s loan. The applicant was scared due to the threats from the creditor.  She therefore borrowed some money from a bank in Hong Kong to repay part of the loan to the creditor. Since the applicant had no means to make further payment, she did not answer the calls from the creditor when she called her twice in August 2019.  Later, she even changed her phone number to avoid the creditor.

7.  When the applicant last contacted her family in October 2021, her stepbrother informed her that the creditor had visited her home and vandalised the furniture.

8.  Meanwhile, although no one from her family knew that she had given birth to a child out of wedlock, the applicant also feared discrimination from her relatives and her stepmother because of this.  

9.  The applicant had never sought help from the police because she considered that it was her own fault for failing to repay the loan. She also believed that the police would not intervene in private financial disputes. The applicant considered internal relocation not viable as well because the creditor was rich and resourceful, so that she worried that she would be found anywhere within Indonesia.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 7 December 2023 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the past action of the creditor indicated that she had no real intention to seriously harm or kill the applicant, so that the applicant would not face a real and foreseeable risk. As for the feared discrimination from her relatives and her stepmother, the Director considered this a mere speculation. In any event, such familial discrimination would not be a basis for seeking non-refoulement protection [14]-[15].

13.  Furthermore, the Board found that (i) state protection would be available to her [17]-[23]; (ii) internal relocation would be viable [16], [24]-[28] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34], Persecution risk [35]-[40] or Torture risk [41]-[43].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board. On 20 February 2024, the Board conducted an oral hearing.

15.  During the hearing, the applicant gave contradicting evidence regarding (i) the details of the loan; (ii) whether she was at home and met the creditor when the March 2017 incident happened; (iii) how she used the money borrowed from the bank in Hong Kong and the amount borrowed [74].

16.  The Board found the applicant’s evidence about her mother’s loan from the creditor rather vague and general [78]. As to her fear of being discriminated for having a child born out of wedlock, the Board noted that there are channels for the applicant to make complaints against domestic violence or she could simply relocate to other places within Indonesia [87]-[90].

17.  The Board considered the applicant’s claimed fear from the creditor and from her family members unreliable and questionable. Regarding the former, she was not a guarantor of her mother’s debt, while for the latter, no one in Indonesia knew that she had given birth to a child in Hong Kong. In any event, the applicant had not been subjected to any past ill-treatment that reached the requisite severity [93]-[94].

18.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk. Furthermore, state protection and internal relocation would also be available [58]-[70], [95]-[114]. 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

19.  The applicant has filed Form 86 dated 25 April 2024 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

21.  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).

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

23.  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.”

24.  For the reasons above, the Board did not find the applicant’s evidence reliable and it further found that state protection and internal relocation are available to her if she returns to Indonesia.

25.  The applicant has raised no valid reason to challenge the Board’s Decision. There is no reason for the Court to interfere with the Board’s Decision.

26.  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

27.  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