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

HCAL 2278/2019

[2024] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2278 of 2019

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;

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observations for the Applicant:

Introduction

1.  By prescribed Form 86 filed on 8 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 8 May 2019 (“Board’s Decision”). The Board had dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 26 March 2018 (“Director’s Decision”) who refused the applicant’s claim for non-refoulement protection.

2.  In Form 86, the applicant named the “Tourtour Claim” as the proposed respondent. As the Board should have been the proper proposed respondent, Form 86 will be amended accordingly on the court’s own motion.

3.  As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 26 November 2024. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and posted to her updated address.

Background

4.  The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

5.  The applicant came from Indonesia. She last entered Hong Kong in 16 June 2015 as a foreign domestic helper. After her employment contract was prematurely terminated, she started to overstay since 4 August 2016. On 6 July 2017, the applicant was arrested for overstaying and later lodged her non-refoulement claim by written representations dated 8, 10, 11 and 27 July 2017 covering all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by the debt collectors of her ex-husband and her father, who had respectively owed debts in the respective sums of 120 million and 60 million rupiahs.

6.  The Director decided against the applicant’s claim on all applicable grounds. The Director found that the applicant’s problem with the debt collectors was purely a private money dispute, and that there were no substantial grounds for believing that there would be any real and substantial risk of the applicant being harmed or killed by the debt collectors should she be re-fouled. The Director’s said conclusion was based on his evaluation of the past ill-treatments (which were found to be of low intensity), the availability of state protection and the option of reasonable internal relocation. Hence, the appeal to the Board.

7.  On 9 April 2019, the applicant attended a hearing before the Board. At the hearing, the applicant had the assistance of an Indonesian interpreter and adopted the information in her written submissions and the materials placed before the Director. She told the Board that she had nothing to add and no further documents to produce. The applicant gave clarifications on matters contained in some of the documents and answered questions raised by the Board. The Board found that the applicant’s evidence was unreliable, and that her claims concerning the loans made by her husband and her father from loan sharks as well as the threats and assaults the made had been a fabrication. The Board therefore dismissed her appeal against the Director’s Decision.

Legal principles applicable to judicial review

8.  As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

Discussion and conclusion

9.  The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she exhibited a copy of the Board’s Decision. At the hearing, this court had asked her whether she had any grounds she wished to submit in support of the Leave Application. The Applicant confirmed that she had nothing to say, and that she only wanted to remain in Hong Kong. Since the applicant was acting in person, this court repeatedly asked her what mistake or error she believed the Board had made. She said there was not any. It is plain that the applicant had failed to provide any evidence or put forward any grounds to challenge the Board’s Decision.

10.  The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. After examining the applicant’s evidence, the Board found that there were material inconsistencies in the core elements of her claims. The Board found that she was an untruthful witness. As a result of the Board’s adverse findings of the applicant’s credibility, the Board did not accept the applicant’s assertions of ill-treatment or serious harm. The Board concluded that the applicant failed to establish any of the assertions that she had made in the non-refoulement protection claim and the applicant’s evidence was inconsistent and wholly unreliable. These are findings of fact, which the court in a judicial review will not interfere with.

11.  Having rigorously examined the Director’s Decision and the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness or irrationality in the Board’s Decision. The Board had properly examined the applicant’s issue with commonsense and high standard of fairness: see TK v Jenkins & Anor [2013] 1 HKC 526.

12.  For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Order

13.  The Form 86 is amended on the court’s own motion.

14.  The Leave Application be dismissed.

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