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

HCAL 2040/2019

[2024] HKCFI 2432

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2040 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 27 May 2019 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.

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 38, is a national of Indonesia. She came to Hong Kong to work as a domestic helper on 4 August 2014. Her employment contract was prematurely terminated, but she remained in Hong Kong without permission of the Director of Immigration. On 14 October 2014, she was convicted of the offence of breach of condition of stay and was sentenced to 2 months’ imprisonment. She raised her non-refoulement claim by letters dated 9, 14, 17 and 20 December 2014 on the basis that, if refouled, she will be harmed or killed by Jimmy, her creditor because she was unable to repay her loan to him.

5.  According to the applicant, many years ago, her father had borrowed a loan of 500 million Indonesian currency from a money lending company. He was unable to repay the loan.  She borrowed money from Jimmy and another company in Semarang to pay off her father’s debt.  The applicant worked in Hong Kong and remitted money to Jimmy.  However, she was unable to pay.  She was unable to pay off the debt from the Semarang company, it confiscated her family’s house held by the company as the collateral.  Jimmy demanded her to pay off the loan.  On 2 occasions, Jimmy and his people had gone to her home in Indonesia where they damaged the properties.  On the second occasion, she was slapped on her cheeks.  She did not go to hospital or report to police.  She therefore came to Hong Kong and stayed here in order to avoid Jimmy.  Details of her story are set out in paragraph 7 of the Notice of Decision dated 2 January 2018 (“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.  The Director found that: (i)  the low intensity and frequency of past ill-treatment from Jimmy indicated that the future risk of being harmed or killed was not likely to materialize [14]; that state protection would be available [14]-[15]; and internal relocation was viable [16].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 1 March 2019, the Board conducted an oral hearing for her with an interpreter.

9.  Having considered the applicant’s evidence [42]-[72], the Board came to the conclusion below.

“95. Having carefully considered the Appellant’s claims and evidence, including cumulatively, the Board does not find her account to have been credible, and rejects it in its entirety.

98. Consequently, the Board is not satisfied that the Appellant faces any appreciable risk of being harmed by any person called Jimmy or his associates, or by any other creditors or loan sharks, if she returns to Indonesia now or in the reasonably foreseeable future.”

10.  For the above reasons, the Board dismissed her appeal.

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

11.  The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

12.  The applicant has filed her affirmation, in which she stated that if she returns to Indonesia, she will be harmed or killed by Jimmy.  She did not raise any specific ground to challenge the Board’s Decision.

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 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).

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.  From the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions and had allowed her to give explanation to the issues he had raised with her. In my view, the Board was entitled to come to its views above.

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

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

DISPOSITION

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